Rogers v. State

OPINION ON STATE’S SECOND MOTION FOR REHEARING

McCORMICK, Judge.

Like the majority on the State’s original motion for rehearing, we agree that the distinction between “continuing the probation” and “continuing the hearing” is irrelevant to the question of what process is due when the trial court finally takes away the probationer’s liberty. Further, we agree with the majority on original rehearing that due process mandates another determination that the probationer has breached the conditions of probation after he has been returned to probation (or that there is newly discovered evidence of a previous violation which was not known at the time of the first revocation hearing). And this new determination must occur at another revocation hearing for which the probationer has been served with a new motion to revoke giving him proper notice as required by due process.

However, an appellant cannot complain on appeal of the failure of the trial court to hold such a hearing when he has not preserved his error in the trial court by making some type of due process objection, either at the time the judge continues the hearing and/or probation, or at the time of *264 actual revocation or at the time of sentencing. Failure to make such an objection waives any error.

The record in the ease at bar shows that neither appellant nor his attorney voiced any objections to the procedure used by the trial judge. Indeed they urged it. The record shows that appellant pled true to the charges of violating his probation, entered into a stipulation of the evidence, and then testified to the circumstances surrounding the violations of his probationary conditions. Under questioning by defense counsel, appellant testified as follows:

“Q. Do you feel like that if the judge does give you another chance that you can get up, go to work every day, and keep this job?

“A. Yes, sir.

“Q. Will you?

“A. Yes, sir. And keep up my probation within the law.”

The record shows that the appellant’s mother and uncle had found a job and a place for appellant to live should the trial court see fit to continue appellant’s probation. The defense attorney told the court that his own son would take the responsibility for providing transportation for appellant for the next few weeks so appellant could work and continue on probation. When the trial judge informed appellant that he was giving appellant sixty days “to straighten up”, appellant replied:

“THE DEFENDANT: Yes, sir. That’s fair enough, sir.”

The record shows the following occurred sixty days later on September 26, 1980:

“THE COURT: Let the record reflect that this is the case of The State of Texas versus Steve Rogers, Cause No. 6154-B, on the State’s motion to revoke probation. This is a continuation of a hearing that was had on June 26, 1980. Is there any reason why sentence should not be pronounced at this time?

“MR. LINDSEY: (Defense Attorney) No, your Honor.”

No additional evidence was heard by the court. The court then proceeded to enumerate the conditions of probation which appellant had violated and ordered that appellant’s probation be revoked. Once again there was no objection by appellant or his counsel. Sentencing was held on October 10, 1980. At sentencing, after both sides announced ready, the court asked:

“THE COURT: Is there any reason why sentence should not be pronounced at this time?

“MR. LINDSEY: (Defense Attorney) No, your Honor.”

Despite several opportunities, no objection was made by the defense as to the procedure used in this probation revocation.

It is a general rule that appellate courts will not consider any error which counsel for accused could have called, but did not call, to the attention of the trial court at the time when such error could have been avoided or corrected by the trial court. Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980), cert. denied 449 U.S. 986 , 101 S.Ct. 408 , 66 L.Ed.2d 251 (1980).

“The purpose of an objection is to challenge the correctness of the action by the trial court to the end that such action may be corrected by the court itself, if deemed erroneous, and to .lay the foundation for its review, if necessary, by the appropriate appellate tribunal; and the accused cannot remain silent, gambling on his chances for a favorable verdict, and then, when the verdict has gone against him, raise objections which he knew of and which could have been raised during trial.” 24 C.J.S., Criminal Law, Section 1670, at page 1063.

This general rule also applies to constitutional questions. Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977); Thompson v. State, 537 S.W.2d 732 (Tex.Cr.App.1976). In Dunlap v. State, 477 S.W.2d 605 (Tex.Cr.App.1971), this Court held that a defendant could not raise for the first time on appeal a ground of error alleging that he was deprived of his rights under the Sixth and Fourteenth Amendments because of improper identification procedures. And in Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1981) (Opinion on Rehearing), this *265 Court held that failure to object to the improper exclusion of a prospective juror in a capital murder case waived the error for purposes of appeal. Judge Tom Davis wrote:

“In Boulware v. State, 542 S.W.2d 677 [(Tex.Cr.App.)], this Court stated the following:

“ ‘In view of the recent decision of the Supreme Court of the United States that a constitutional guarantee may be waived by a defendant’s counsel for the failure to object such as to the improper organization of a grand jury at the trial level and our decisions above discussed on waiver, we hold that the failure to object to the improper exclusion of a venire member waives that right and it cannot be considered on appeal, Hovila v. State, [ 532 S.W.2d 293 (Tex.Cr.App.) ], and all cases insofar as they hold to the contrary are overruled. See also Tezeno v. State, [ 484 S.W.2d 374 (Tex.Cr.App.) ]... ” 617 S.W.2d, at 939

See also Bass v. State, 622 S.W.2d 101 (Tex.Cr.App.1981).

In Darland v. State, 582 S.W.2d 452 (Tex. Cr.App.1979), the Court held that where appellant had not presented a motion to suppress to the trial court, nor had objected to the introduction of the evidence (a urine sample), appellant had waived his complaint of a Fourth Amendment breach on appeal. Also, Pizzalato v. State, 513 S.W.2d 566 (Tex.Cr.App.1974). And in Branch v. State, 477 S.W.2d 893 (Tex.Cr.App.1972), this Court held the contemporaneous objection rule applied in appeals from orders revoking probation. On appeal, Branch contended that marihuana introduced into evidence at his revocation hearing had been seized in violation of his constitutional rights protecting him from unlawful searches and seizures. The Court found that since no timely objection had been raised during the revocation hearing nothing was presented for review.

The same analysis is applicable to alleged due process violations. Thus, in the present case, since appellant failed to voice any due process objection to the procedures used by the trial court, we hold that he waived his complaint. Thus, the State’s motion for rehearing is granted and the order revoking appellant’s probation is affirmed.

ONION, P.J., and ROBERTS, CLINTON and TEAGUE, JJ., dissent.