holding that failure to make a due-process objection to punishment procedure waived complaint when appellant=s trial counsel failed to object or offer evidence when trial judge asked, AIs there any reason why sentence should not be pronounced at this time?@
How later courts described this case
- holding that failure to make a due-process objection to punishment procedure waived complaint when appellant=s trial counsel failed to object or offer evidence when trial judge asked, AIs there any reason why sentence should not be pronounced at this time?@
- holding that probationer waives error if he fails to raise due process objection in trial court, "either at the time the judge continues the hearing and/or probation, or at the time of actual revocation or at the time of sentencing"
- holding that the appellant could not complain about the procedures used to revoke his probation when he failed to make an objection in the trial court
- holding that, to properly preserve error, appellant should lodge an objection “either at the time the judge continues the hearing and/or probation, or at the time of actual revocation or at the time of sentencing.”
Written by the judges who cited it.
The opinion
ODOM, Judge,
dissenting.
I dissent to the majority’s decision that a prolonged continuance of a hearing on a motion to revoke probation automatically becomes equivalent to a decision to continue the probationer on probation.
*263 As the majority acknowledges, the language of Art. 42.12, Sec. 8(a), V.A.C.C.P., specifically distinguishes between a decision to continue the probation revocation hearing and a decision at the conclusion of such a hearing to continue the probation itself. Yet in disregard of this statutory distinction, the majority holds that “a prolonged ‘continuance of the hearing’ ” (emphasis added) transforms a continuance of the hearing into a continuation of the probation, and divests the trial judge of his discretionary authority under the statute to “continue, modify or revoke the probation.” This process of automatic conversion of a continuance to a continuation of probation apparently takes place regardless of the intent of the court and the parties at the time the continuance is granted.
The mere passage of time, beyond the point at which the continuance becomes “prolonged” (whatever that is and however it is determined), apparently activates some principle of due process estoppel that prohibits the trial court from completing its previously instituted jurisdiction over the pending motion to revoke even though the probationer took no step to assert any right to speedy disposition of the motion. Even the statutory rights to a speedy hearing on the motion to revoke, Art. 42.12, Sec. 8(a), V.A.C.C.P., and to a speedy trial, Art. 32A.02, Sec. 3, V.A.C.C.P., must be asserted by timely motion or be waived by silence. Now the majority, without statutory basis, institutes an absolute right to speedy disposition of a pending hearing to revoke probation and in the same act establishes automatic relief for violation of the new right: the automatic award of a continuation of the probation.
This arbitrary restriction of the trial judge’s discretionary control over probation and revocation of probation will produce a reluctance to grant probation, a reluctance to allow a continuance of probation revocation hearings, and a reluctance to give doubtful probationers a second chance. While today’s appellant may receive a temporary advantage by today’s holding, he and others similarly situated will in all probability be disadvantaged by the majority decision, since when the door on a deferred exercise of the discretion to continue, modify or revoke the probation is slammed shut, the second chance afforded by that discretion will be shut out as well.
To the majority’s establishment of an arbitrary and standardless automatic cutoff of continuances in probation revocation hearings, to its disregard of the intent of the trial court and parties, to its creation of a new unwaivable right to a speedy disposition of the revocation hearing, and to its unwarranted intrusion into the trial court’s discretionary power to continue, modify or revoke probation, I respectfully dissent.
TOM G. DAVIS, DALLY and W.C. DAVIS, JJ., join this dissent.