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 ofthe 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

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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 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.

Do Not Publish

Tex. R. App. P. 47

970586F.U05

ED KINKEADE

JUSTICE

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^•^.*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: 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 of Appeals

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