                                  NO. 07-06-0373-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                 MARCH 27, 2007
                         ______________________________

                               KYLE WAYNE PRATER,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 31ST DISTRICT COURT OF HEMPHILL COUNTY;

                 NO. 2592; HON. STEVEN R. EMMERT, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Kyle Wayne Prater (appellant) appeals from the judgment revoking his community

supervision. He was originally convicted of possessing four or more but less than 200

grams of a controlled substance, a felony of the second degree. His three issues involve

whether the trial judge was fair, neutral and detached and the omission of documents (the

motion to revoke and conditions of community supervision) from the appellate record. We

overrule each and affirm.
                                        Background

       Appellant was indicted for possession of a controlled substance, convicted by a jury

and assessed punishment at ten years in prison. However, his sentence was suspended,

and he was placed on community supervision for ten years. Subsequently, the State

moved to revoke appellant’s probation for a myriad of reasons including his continued use

of controlled substances. A hearing was held whereat appellant admitted true to most of

the allegations in the State’s motion, including those involving controlled substances. So

too was other testimony received supporting the State’s motion. Thereafter, the trial court

found that appellant violated his probation and sentenced him to eight (not ten) years in

prison.

                           Issue One - Trial Court was Biased

       In his first issue, appellant contends the trial court was not impartial or neutral. This

supposed lack of impartiality was evinced by its comment that “I told you that if you came

back in here you weren’t going to like it. . . ”and its decision to set bail on appeal at

$50,000. Yet, appellant objected below neither to the court’s comment, to the amount of

bail nor to the purported lack of impartiality. Neither does the record reflect that appellant

moved for a new trial based upon discovering the trial court’s supposed impartiality or

moved for the judge’s recusal. Consequently, the complaint was not preserved for review.

TEX . R. APP. P. 33.1; see Baxter v. State, 936 S.W.2d 469, 471 (Tex. App.–Fort Worth

1996), pet. dism'd, improvidently granted, 960 S.W.2d 82 (Tex. Crim. App. 1998) (holding

that the contemporaneous objection rule applies to allegations that the accused was

denied due process); Smith v. State, 993 S.W.2d 408, 410 (Tex. App.–Houston [14th Dist.]



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1999, pet. ref’d) (holding that by failing to object to the bond conditions when they were

made, appellant failed to preserve error for appeal).

       Moreover, read in context, we find nothing that suggests the trial court

predetermined the outcome. In referring back to the cautions uttered when probating the

original sentence, the trial court simply informed appellant that he had been previously

warned and afforded a chance to redeem himself. This was then followed by iterations

revealing the court’s reluctance to imprison appellant and its need to retain its credibility

and obtain the accused’s attention. Simply put, a trial court need not utter hollow warnings

or advice to avoid allegations of impartiality. Surely, if children can recognize when parents

do not mean what they say, then so too can felons.

       Lastly, the trial court had before it appellant’s own admissions as well as other

evidence of his guilt. So too did it opt to render a lesser term of imprisonment than that

originally levied. These circumstances remove the situation before us from those indicative

of partiality. See Brumit v. State, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (holding

that the trial court’s comments which included calling the defendant a predator did not

show bias or partiality when the record reflected that the trial court reviewed the evidence

and a predetermined sentence was not imposed).

                       Issues Two and Three - Missing Records

       In his last two issues, appellant contends that the record does not support the

revocation because it omits the State’s motion to revoke and the conditions of probation

originally imposed on him. Both appear in a supplemental clerk’s record, however.

Consequently, the issues are moot. See Sawyer v. State, 655 S.W.2d 226, 227 (Tex.



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App.–Houston [14th Dist.] 1983, no pet.) (holding that complaints about documents missing

from the record are rendered moot when the documents are included in a supplemental

appellate record).

      We affirm the judgment of the trial court.



                                                Brian Quinn
                                                Chief Justice

Do not publish.




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