                                                                             \]h«13

                             (dtfurt at Appeals
                     ¥\fttj Btstrtct of Qkxas at Ballas
                                    JUDGMENT

CHARLES REED SAYLES, Appellant              Appeal from the 291st Judicial District
                                            Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-97-00649-CR             V.           F95-02123-TU).
                                            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.




                                                   £*L
                                            ED KINKEADE
                                            JUSTICE
Affirmed and Opinion Nunc Pro Tunc Filed December^ 1998




                                          In The

                             (tftturt of Appeals
                     T\fttf Itstrtct of Qkxas at Ballas
                                   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 a negotiated 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 the 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 a revocation 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.

                                                       ^^{/A^kdM/
                                                    ED KINKEADE
                                                    JUSTICE


Do Not Publish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




                                              -5-
CC: Clerk-


CC: Judge -

Author of Opinion Justice Kinkeade

Trial Court Judge Burdock

Rehear denied


"THIS CASE IS RELEASED FOR PUBLICATION   YES / NO
