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 OnAppealfrom the 291st Judicial District Court ofDallas 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 ofthe Court. Charles Reed Sayles, Jr. appeals his convictions for theft ofthe value at least $1500 but less than $20,000. In cause number 05-97-00586-CR, appellant entered anegotiated 

### plea of guilty. In cause number 05-97-00649-CR, in which the indictment included oneenhancementparagraph, appellantenteredanegotiatedpleaofguiltyto the chargedoffense 

### and a plea of true to the enhancement paragraph. The trial court followed the plea 

### agreements, found appellant guilty ofboth 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 

### boxin thejudgmentorderingprobation labeled "terms ofnegotiatedpleabargain" allreflect that the terms ofthe plea bargain agreement included a$500 fine. Thejudgment 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. Appellantpleadednot true. The trial courtfound the allegation true, revoked 

### appellant's probation inboth cases, and sentenced appellant to two years' confinementfor

each offense. 

### Duringliferevocationhearing, AddisonpoliceofficerWilliamsonidentifiedappellant as the individual he pulled overonNovember22,1996, after observingthevehicle appellant 

### was driving straddlingthelanedividerandweavingbetweenlanes. Williamsonobservedthat 

### appellant's eyeswereveryglassyandred, noticedthe smellofalcoholon appellant'sbreath, and administered field sobriety tests, which appellant failed. Williamson testified that 

### appellantdidnothavethenormaluse ofhismentalorphysicalfaculties duetotheingestion

-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 pickup 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 oferrorthat allowing the State to ask appellant ifhe thought the police officerwas 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 oferror is overruled.

-3-In his second point of error, appellant complains that his due process rights were violated during the revocation hearing because the trialjudge 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 Statehadfinished questioning appellant. Appellant, however, never objectedto the trial court's action. Thus, appellantwaived 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 thejury trial cases relied on by 

### appellant, this case involved arevocation hearingbefore 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 trialjudge 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 oferror is overruled.

•4-We affirm the trial court's judgment.

Do Not Publish Tex. R. App. P. 47 970586F.U05 ED KINKEADE JUSTICE

-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 75207-4399CC: ClerkCC: Judge

- Author of Opinion Justice Kinkeade Trial Court Judge Mays Rehear denied *THIS CASE IS RELEASED FOR PUBLICATION YES / NO

# 17/7°T-!

(Gourt ofAppeals 

### JTtftif Ststrtrt of©exas at Dallas JUDGMENT CHARLES REED SAYLES, Appellant No. 05-97-00586-CR V. THE STATE OF TEXAS, Appellee Appeal from the 291st Judicial District Court ofDallasCounty, Texas. (Tr.Ct.No. F95-030145-IU). Opinion delivered by Justice Kinkeade, 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