AFFIRMED; Opinion Filed February 5, 2014.




                                         S    In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-13-00220-CR

                              VERNON M. GRAVES, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1119018-P

                             MEMORANDUM OPINION
                           Before Justices Moseley, Bridges, and Evans
                                   Opinion by Justice Moseley
       Vernon M. Graves pleaded no contest to an indictment charging him with serious bodily

injury to a child. He waived his right to trial by jury, and the trial court found Graves guilty. In

a single issue, Graves argues he was denied due process when the trial court arbitrarily refused to

consider impeachment evidence. The background of the case and the evidence adduced at trial

are well known to the parties; thus, we do not recite them here. Because all dispositive issues are

settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the

trial court’s judgment.

       The child Graves allegedly injured was his son. After Graves was arrested, he gave a

videotaped statement. At trial, the detective assigned to the case testified. And on cross-

examination, the following exchange occurred between the defense lawyer and the detective:
               Q.        Detective, are you saying that the defendant on this tape said he
       decided to hit the kid because he was out of hand, is that your testimony?
               A.        I don’t remember exactly the verbiage he used.
               Q.        Why would you choose those words, though, if it was never said?
               A.        I guess we’d have to watch the tape - -
               Q.        I guess we do, because he never said that.
               A.        -- to see exactly what he said.
               Q.        At no point did Mr. Graves admit to you that he hit [his son].
               A.        I don’t recall. We’ll have to watch the tape.
               Q.        Okay. And even though you say you never - - you don’t recall
       seeing any injuries on Mr. Graves, Mr. Graves demonstrated - - told you and
       demonstrated to you on the tape where [his son] hit him on - - [his son] hit him on
       his chest . . . and he lifted up his shirt to show you . . . Is that correct?
               A.        I’ll have to look at the tape, and I didn’t have a lot of time to prepare
       to look at this thing prior to this.
               THE COURT:                Let me say this, since this is a TBC, I can tell both
       sides right now that this Court is not going to base its decision based on his
       testimony or that tape. I’m going to base my decision based on the defendant - - I
       mean the complaining witness and anything the defense puts on, but if we want to
       do the tape, then we’ll do the tape. So what do you think? Are you going to want
       to watch the tape?
               [Defense counsel]: No. I’ll just cross-examine him.
               THE COURT:                I mean, I want you to do what you want to do, but
       I’m just telling you, my decision is not going to be based on his testimony.
               [Defense counsel]: Okay, Your Honor. If I feel he said something
       contrary to what’s on the tape, then we may want to, but other than - - if he just
       says he doesn’t recall, I’ll leave it at that.

       Graves concedes he did not object at trial to the judge’s statement that she was not going

to base her decision on the detective’s testimony or the videotape. He also did not complain

about the judge’s statement in his motion for new trial. However, on appeal, Graves argues the

tape would have been admissible for impeachment and the trial judge’s action of “summarily

refusing to consider consequential impeachment evidence” showed the court did not act as a

neutral and detached hearing body, which denied Graves of due process.

       Because Graves did not complain about the trial court’s statements either at the time they

were made or in a motion for new trial, he has failed to preserve his complaint for appeal. See

TEX. R. APP. P. 33.1(a). We overrule his sole issue.


                                                 –2–
       We affirm the trial court’s judgment.




                                                     /Jim Moseley/
                                                     JIM MOSELEY
Do Not Publish                                       JUSTICE
TEX. R. APP. P. 47
130220F.U05




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                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

VERNON M. GRAVES, Appellant                        On Appeal from the 203rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-13-00220-CR        V.                       Trial Court Cause No. F-1119018-P.
                                                   Opinion delivered by Justice Moseley.
THE STATE OF TEXAS, Appellee                       Justices Bridges and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of February, 2014.




                                                   /Jim Moseley/
                                                   JIM MOSELEY
                                                   JUSTICE




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