II 300 2010 2010 14 2010 15 2010 17 2010 v. << (2011)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

The trial court held four hearings after Hankins's warrant was executed.   At the first hearing, on November 29, 2010, the trial court considered and granted Hankins's request for a continuance to locate his two witnesses.   Hankins and the State agreed that the State would proceed with its evidence and Hankins would put on his case after locating his witnesses.²  Hankins was present at the hearing and acknowledged that he understood the proceedings.   The trial court read to Hankins the two allegations in the State's petition to proceed to adjudication—that he had possessed methamphetamine and had obtained or attempted to obtain a dangerous drug by fraud—and Hankins pleaded not true to both allegations.

On December 3, 2010, Hankins filed another motion for continuance, requesting a hearing date change so that his witness, Dr. Anil Bangale, could be present and testify for the defense.   On December 6, 2010, before the trial court continued hearing evidence, Hankins's counsel informed the trial court that Dr. Bangale would be available two days later, and the trial court agreed that Hankins could resume his case with Dr. Bangale on December 8. At the December 8 hearing, the trial court gave Hankins permission to bring in one more witness, Dr. Norris Duane Purcell—Hankins's psychiatrist—on December 10.

Hankins never raised lack of notice or service of citation in his motions or at the hearings.   The trial court found the State's allegations to be true, entered a final judgment adjudicating Hankins guilty, and sentenced him to ten years' confinement.   This appeal followed.

III. Notice

Hankins complains ³

IV. Conclusion

Having overruled Hankins's sole issue, we affirm the trial court's judgment.

PANEL:  MCCOY, GARDNER, and GABRIEL, JJ.

Tex.R. App. P. 47.2(b)

DELIVERED:  December 15, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. Hankins's counsel affirmatively agreed to this, stating, “[W]e're ready to proceed.”.  FN2. Hankins's counsel affirmatively agreed to this, stating, “[W]e're ready to proceed.”

FN3. Hankins states that the due course of law provisions mirror the federal due process requirements for motions to revoke community supervision.   Therefore, we will address them together.   See, e.g., Jimenez v. State, 32 S.W.3d 233, 242 & n.10 (Tex.Crim.App.2000) (McCormick, P.J., concurring) (stating that federal due process and state due course of law mean the same thing);  see also Vasquez v. State, 230 S.W.3d 744, 751 (Tex.App.—Houston [14th Dist.] 2007, no pet.) (stating, in a destruction-of-evidence case, that the federal due process and state due course of law provisions provide the same protection)..  FN3. Hankins states that the due course of law provisions mirror the federal due process requirements for motions to revoke community supervision.   Therefore, we will address them together.   See, e.g., Jimenez v. State, 32 S.W.3d 233, 242 & n.10 (Tex.Crim.App.2000) (McCormick, P.J., concurring) (stating that federal due process and state due course of law mean the same thing);  see also Vasquez v. State, 230 S.W.3d 744, 751 (Tex.App.—Houston [14th Dist.] 2007, no pet.) (stating, in a destruction-of-evidence case, that the federal due process and state due course of law provisions provide the same protection).

FN4. The common sense reason for this rule is to afford the trial court the opportunity to correct the mistake at that level before it reaches an appellate court for review.   See Starks v. State, 252 S.W.3d 704, 706 (Tex.App.—Amarillo 2008, no pet.)  (“A primary purpose for requiring a specific and contemporaneous objection is to advise the trial court of impending error and afford the court an opportunity to avoid the error or take corrective action to cure the error.”).   The rule also prevents a party from “laying behind the log” and bringing up a complaint later only if an unfavorable result occurs.   See Porath v. State, 148 S.W.3d 402, 414 (Tex.App.—Houston [14th Dist.] 2004, no pet.)..  FN4. The common sense reason for this rule is to afford the trial court the opportunity to correct the mistake at that level before it reaches an appellate court for review.   See Starks v. State, 252 S.W.3d 704, 706 (Tex.App.—Amarillo 2008, no pet.)  (“A primary purpose for requiring a specific and contemporaneous objection is to advise the trial court of impending error and afford the court an opportunity to avoid the error or take corrective action to cure the error.”).   The rule also prevents a party from “laying behind the log” and bringing up a complaint later only if an unfavorable result occurs.   See Porath v. State, 148 S.W.3d 402, 414 (Tex.App.—Houston [14th Dist.] 2004, no pet.).

FN5. Citing no authority, Hankins argues that the alleged failure to serve him with the State's petition to proceed to adjudication constitutes a structural, or systemic, requirement that is not subject to a harm analysis.   But systemic requirements include personal and subject matter jurisdiction, a penal statute's being in compliance with the separation of powers section of the state constitution, a constitutional requirement that a district court conduct its proceedings at the county seat, the constitutional prohibition against ex post facto laws, and certain constitutional restraints on a judge's comments.  Saldano v. State, 70 S.W.3d 873, 888–89 (Tex.Crim.App.2002).   We have found no case holding that notice of a State's motion to proceed to adjudication is a systemic right..  FN5. Citing no authority, Hankins argues that the alleged failure to serve him with the State's petition to proceed to adjudication constitutes a structural, or systemic, requirement that is not subject to a harm analysis.   But systemic requirements include personal and subject matter jurisdiction, a penal statute's being in compliance with the separation of powers section of the state constitution, a constitutional requirement that a district court conduct its proceedings at the county seat, the constitutional prohibition against ex post facto laws, and certain constitutional restraints on a judge's comments.  Saldano v. State, 70 S.W.3d 873, 888–89 (Tex.Crim.App.2002).   We have found no case holding that notice of a State's motion to proceed to adjudication is a systemic right.

FN6. Further, we find it implausible and unconvincing that Hankins was unaware of the State's allegations.   On November 29, 2010, well before Hankins presented his case after receiving a continuance and locating his witnesses, the trial court informed him of the allegations against him as set forth in the State's petition to proceed to adjudication.   Hence, by the time Hankins presented his case, he was well aware of the allegations against him if, in fact, he was not previously aware..  FN6. Further, we find it implausible and unconvincing that Hankins was unaware of the State's allegations.   On November 29, 2010, well before Hankins presented his case after receiving a continuance and locating his witnesses, the trial court informed him of the allegations against him as set forth in the State's petition to proceed to adjudication.   Hence, by the time Hankins presented his case, he was well aware of the allegations against him if, in fact, he was not previously aware.