Shannon Dean Parmer v. State of Texas--Appeal from 7th District Court of Smith County

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NO. 12-01-00093-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

SHANNON DEAN PARMER,

 
APPEAL FROM THE 7TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
SMITH COUNTY, TEXASPER CURIAM

Shannon Dean Parmer ("Appellant") appeals the revocation of his probation and sentence of imprisonment for four years. Appellant raises one issue on appeal. We affirm.

 

Background

On November 27, 2000, pursuant to a plea bargain with the State of Texas (the "State"), Appellant pleaded guilty to unauthorized use of a motor vehicle. The trial court adjudicated Appellant guilty and sentenced him to imprisonment for ten years, but probated Appellant's sentence for a period of five years. At the sentencing hearing, the trial judge stated:

 

But you understand in this court, you know how it works in here. If a violation is ever proven of any condition of probation, you will be revoked and you'll be going to prison. You understand? ... So don't try to rationalize around it to give [in to] temptation because you know what you're looking at, ten years in prison . . . There are lots of other conditions. Make sure you understand them all before you leave today. Then obviously if you fail to report to jail at the appropriate time any time, then that's a violation that can get you revoked if proven and then you're on your way to prison if that's done. ... I hope you don't give in, but you know what happens if you do.

Subsequently, the State filed a motion to revoke Appellant's probation, alleging that Appellant had violated certain terms of his probation. A hearing was held on the State's motion and the trial court found that Appellant had violated certain terms of his probation as alleged. Prior to announcing Appellant's sentence, the trial judge stated: "There are consequences to not doing what's ordered and the consequence is, as I told you when I gave you this other chance on probation, if there's any violations you get revoked; and there was a violation, so, Mr. Parmer, you get revoked." The trial judge then assessed Appellant's punishment at imprisonment for four years.

 

Preservation of Error Involving

Allegations of Predetermination of Sentence

Appellant contends that the trial judge failed to act as a neutral and detached magistrate when he improperly predetermined the punishment to be imposed on Appellant, rather than considering all available punishment options. Appellant argues that the trial judge's actions violated his constitutional rights of due process and equal protection under the law. In Fielding v. State, 719 S.W.2d 361 (Tex. App.-Dallas 1986, writ ref'd), the Dallas Court of Appeals held that the appellant had waived any such error by his failure to timely object or file a recusal motion, even where the issue was raised in the appellant's motion for new trial. See Fielding, 719 S.W.2d at 367, citing Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982) (T.G. Davis, Dally, and W.C. Davis, JJ., dissenting). The court of criminal appeals has recently reversed a decision of the First Court of Appeals on similar grounds. See Hull v. State, No. 1812-00, 2002 Tex. Crim. App. LEXIS 16 (January 30, 2002). Relying on Texas Rule of Appellate Procedure 33.1, the court of criminal appeals held that the court of appeals erred in concluding that the written conditions of probation somehow excused appellant from objecting to the trial court's "zero-tolerance" policy toward the appellant's probation. See Id. at 3. If the trial judge in the instant case committed errors sufficient to warrant reversal on appeal, such errors deserved at least an objection or, better, a motion to recuse. See Fielding, 719 S.W.2d at 367. As such, in accordance with the Texas Rules of Appellate procedure and the recent decision of the court of criminal appeals on this issue, we hold that Appellant, by his failure to timely object to the trial judge's statements allegedly indicative of the trial judge's predetermination of punishment, waived his right to raise that issue on appeal. See Hull v. State, 2002 Tex. Crim. App. LEXIS 16, at 2; Tex. R. App. P. 33.1(a)(1)(A) ("As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint . . . ").

Accordingly, the trial court's order revoking Appellant's probation and the sentence imposed are affirmed.

 

Opinion delivered February 20, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

 

(DO NOT PUBLISH)