Opinion
No. 05-05-01523-CR
Opinion issued November 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81090-01. Affirmed.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
MEMORANDUM OPINION
Neal Wayne Mayo appeals his conviction for sexual assault of a child. Appellant pleaded guilty and sought deferred adjudication probation. The trial judge accepted appellant's plea and placed him on deferred adjudication probation for ten years. Thereafter, the State filed a motion to adjudicate appellant's guilt. After appellant pleaded true to nine of the alleged violations, a visiting trial judge adjudicated guilt and assessed punishment at twelve years' confinement. In two issues, appellant contends his rights to due process under the federal and state constitutions were violated when the visiting judge presided over the hearing on the State's motion to adjudicate guilt. After reviewing the record, we disagree and affirm the trial court's judgment. In his first issue, appellant contends his due process rights were violated when a visiting judge, "who was not familiar with all the circumstances surrounding the case, especially the mitigating factors," presided over the hearing on the State's motion to adjudicate guilt. Under this issue, appellant claims "it was objectionable" for the visiting judge to preside and that section 74.053(d) of the government code allows a party to object to a former judge. Initially, we note that appellant did not raise an objection about the visiting judge at any time during the proceeding below. And, although appellant filed a motion for new trial, the grounds alleged in the motion did not include a complaint about the visiting judge who presided over the hearing on the State's motion to adjudicate guilt. Because appellant raises this complaint for the first time on appeal, we conclude he has waived this issue. See Tex.R.App.P. 33.1(a); Joines v. State, 482 S.W.2d 205, 208 (Tex.Crim.App. 1972) (appellant's failure to object to change in sitting judge waived error); Rogers v. State, 846 S.W.2d 883, 886 (Tex.App.-Beaumont 1993, no pet.) (appellant did not challenge judge's assignment and thus waived any objection to same). Even assuming we were to address appellant's complaints, we would nevertheless reject them. Although appellant argues section 74.053(d) of the government code allows him to object to the visiting judge, the Texas Court of Criminal Appeals has concluded that section does not to apply to criminal cases. Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 587 (Tex.Crim.App. 1993). Therefore, even if he had objected under section 74.053(d), he would not have been entitled to relief. Furthermore, the court of criminal appeals has held that, even when one judge presides over a trial, a defendant is not entitled to have that same judge preside over punishment or pronounce sentence. See Sanchez v. State, 124 S.W.3d 767, 769 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984) (defendants are not afforded judge of their choice; when one judge presides at trial, defendant is not entitled to have that same judge pronounce sentence) and Benjamin v. State, 874 S.W.2d 132, 134 (Tex.App.-Houston [14th Dist.] 1994, no pet.) (same)). Because it is proper for one judge to preside at trial and a different judge to preside over a hearing, be it punishment or on the State's motion to adjudicate, we conclude this complaint lacks merit. We overrule his first issue. In his second issue, appellant likewise complains his due process rights were violated when his motion for new trial was denied. His argument under this issue again addresses the propriety of having a visiting judge preside over the hearing. As noted previously, appellant's motion for new trial did not address the issue he now argues on appeal. Because this issue was not properly raised below, we decline to address it for the first time on appeal. See Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App. 2003) (appellant failed to preserve any error because the objection at trial did not comport with complaint raised on appeal); Weisinger v. State, 775 S.W.2d 424, 425 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd) (nothing presented for review when objection raised on appeal which varies from objection made at trial and appellant's pretrial objections did not comport with contention on appeal nor was such contention preserved in motion for new trial). We overrule his second issue. We affirm the trial court's judgment.