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 of the 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

                                                -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 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.


                                                 -3-
       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.


                                                ED KINKEADE
                                                JUSTICE


Do Not Publish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




                                              -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 75207-4399
CC: Clerk-


CC: 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              Appeal from the 291st Judicial District
                                            Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-97-00586-CR             V.           F95-030145-IU).
                                            Opinion delivered by Justice Kinkeade,
THE STATE OF TEXAS, Appellee                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
