Woody Richard Stuart v. State

• Court: Court of Appeals of Texas
• Decided: August 31, 2000
• Docket: 13-99-00626-CR
• Status: Published

Opinion

NUMBER 13-99-626-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

WOODY RICHARD STUART, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 347th District Court of Nueces County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez

Opinion by Justice Hinojosa

Appellant, Woody Stuart, pleaded guilty on September 14, 1998, to the offense of unauthorized use of a motor vehicle.⁽¹⁾ Joaquin Villarreal, Judge of the 347th District Court of Nueces County, accepted appellant's plea, found him guilty and assessed his punishment at one year in a state jail facility and the payment of restitution in the amount of $10,000. The sentence was suspended, and appellant was placed on community supervision for two years. The State later moved to revoke appellant's community supervision, alleging he had: (1) failed to report to his community supervision officer, (2) failed to pay restitution, court costs and fees, and (3) failed to complete 120 hours of community service. At the revocation hearing on August 31, 1999, appellant pleaded true to the State's allegations, and Judge Villarreal ordered that appellant serve his original sentence of one year in a state jail facility. Appellant timely filed a notice of appeal. The sole issue presented by appellant for our review is "whether or not the appellant was denied a fair and impartial judge during the hearing of a motion to revoke his probation and thereby due process of law."

A defendant may appeal from a revocation of his community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2000). Because appellant complains that Judge Villarreal made "inappropriate and biased" remarks during the revocation hearing, we set out the relevant parts of the reporter's record.⁽²⁾ After appellant admitted he still had not paid any of the money he owed, the following colloquy occurred: The Court: The -- Let me tell you another thing that I noticed about people like you. They don't come up and say, Judge -- did you see this lady that was here before you.

Appellant: Yes, sir.

The Court: She paid everything before she came up before me. You are telling me "if."

Appellant: No, sir. I will.

The Court: You made the payment already? Have you paid the thousand dollars that I was told you were going to pay? Have you paid anything at all?

Appellant: No, sir.

The Court: You follow a pattern of all people like you. They come up to me and say, Judge, if you place me -- keep me on probation, I will come up with the money. They don't come up to me and say, Judge, here is my money. Have mercy on me.

*************

The Court: I bet you that if I send you to the penitentiary you ain't going to pay the restitution. You ain't going to pay nothing. I would be willing to bet you because it happens all the time. I've been a judge since '81. I know every story there is, man.

************

The Court: I see here that you've been in the criminal justice system since 1988. You were arrested for burglary of a habitation. There was a city warrant for seven violations. There was stolen property, possession of controlled substance. Then the same -- apparently, you were placed on five years deferred adjudication. There was an evading arrest that you were placed on probation for. There was a motion to revoke. There was a speeding; no liability insurance. There was a prohibited weapon arrest.

Appellant: I don't -- I have nothing on that.

The Court: I am just reading what's on your thing here. There was an assault [sic]Portland police officer; criminal trespass; unauthorized use of a motor vehicle in McClendon County. It's not this one. It's another evading arrest in McClendon County.

Appellant: That was dropped.

The Court: Now this one.

Appellant: Those were dropped, Your Honor. Only ones that was pending --

The Court: Well, what you need to do is sue whoever arrested you because they will follow you until you die. These arrests are documented somewhere. I didn't make them up.

Appellant: I understand.

The Court: I am trying to tell you that I have no pity on you.

Appellant: . . . I promise you that you will never see me in another court.

The Court: I am never going to see you again, Mr. Stuart, because I am stepping down myself. So I'll never see you again, not as a judge, anyway.

Appellant contends these remarks show the trial court "is either biased against the entire class of criminal defendants or 'totally burned out.'" Appellant claims he was denied the fundamentally fair trial guaranteed by the due process clause of the Fourteenth Amendment.

The fundamental fairness doctrines of due process apply to probation revocation proceedings. Wright v. State, 640 S.W.2d 265, 269 (Tex. Crim. App. 1982); Wester v. State, 542 S.W.2d 403, 406 (Tex. Crim. App. 1976). However, as a prerequisite to presenting a complaint for appellate review, the record must show: (1) that the complaint was made known to the trial court in a timely fashion and with sufficient specificity to make the trial court aware of the complaint, and (2) that the trial court ruled or refused to rule on the complaint. Tex. R. App. P. 33.1(a); Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999). The record clearly shows appellant failed to object to the trial judge's comments.

A defendant may waive any trial error, even virtually all constitutional errors, by failing to object properly or to request appropriate relief. Little v. State, 758 S.W.2d 551, 563-64 (Tex. Crim. App. 1988); see also, Hawkins v. State, 964 S.W.2d 767, 770-71 (Tex. App.--Beaumont 1993, pet ref'd) (due process complaints may be waived by non-assertion). An appellant who fails to voice any due process objection to the procedures used by the trial court in a probation revocation waives his complaint. See Rogers v. State, 640 S.W.2d 248, 265 (Tex. Crim. App. [Panel Op.] 1982) (2nd op. on reh'g);see also Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992);Baxter v. State, 936 S.W.2d 469 (Tex. App.--Fort Worth 1996), pet. dism'd, 960 S.W.2d 82 (Tex. Crim. App. 1998)(the contemporaneous objection rule applies to alleged violations of due process in probation revocation hearings).

Because appellant did not object to the trial court's comments, we hold his due process complaint has not been preserved for appellate review. We overrule appellant's sole issue.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of August, 2000.

1. Tex. Pen. Code Ann. § 31.07 (Vernon 1994).

2. The parts of the record specifically cited by appellant are italicized; the additional parts are included by this Court for completeness.