Janecka v. State

¶1OPINION ON STATE’S MOTION FOR REHEARING

¶2Due to the somewhat protracted nature of the proceedings on direct appeal in the instant cause, it is necessary to briefly detail the prior actions hereon. The instant offense was alleged to have occurred on or about July 5, 1979. The indictment was filed December 11, 1980. Appellant was convicted and sentenced to death in April of 1981. This Court remanded the cause to the trial court for a hearing so that the appellant could have the opportunity to demonstrate harm as a result of the trial court’s error in overruling his motion to quash. Janecka v. State, 739 S.W.2d 813, 842 (Tex.Cr.App.1987). The trial judge then appointed a special master to preside over the hearing and make findings of fact and conclusions of law. After several re-settings, which were agreed to by both the State and appellant, the special master conducted the hearing and made findings of fact and conclusions of law. The trial court adopted the special master’s findings and conclusions on March 11, 1988. Neither party objected to the appointment of the special master, his findings and conclusions, or the trial court’s adoption thereof. On January 30, 1990, this Court reversed and remanded the cause based upon appellant’s demonstration of harm in that the particular defect of form in the charging instrument prejudiced his substantial rights. On rehearing, the State now alleges for the very first time that the trial judge lacked the authority to appoint a special master to conduct a hearing on the subject of harm.

¶3Specifically, the State argues that, unlike post conviction writ proceedings, no statute gives a district judge in Harris County the authority to appoint, a special master to hold a hearing in a case on direct appeal. The State also points out that the order remanding the cause for a hearing specifically stated that “[t]he trial court shall hold a hearing to allow appellant to more fully develop his allegation of harm.” The State contends that because the special master lacked authority to preside over the hearing, the entire proceeding is void ab initio, and a lawful hearing should now be held. Had the State objected at the time the master was appointed, or perhaps on submission before this Court, we might have reached the merits of its claim. However, as the State did not so object, we do not reach said claim.1

¶4To preserve this issue for appellate review, the complaining party must make a timely and specific objection. Tex. R.App.Pro. 52(a).2 It is well-settled that *244the purpose of requiring a timely specific objection is to allow the trial court to have the opportunity to make a determination and ruling on the complained of point and then to proceed with the trial under the proper procedural and substantive manners, as appropriately corrected by the trial court. Thus, the trial court is allowed to correct the complained of error at that time and to then proceed with the trial. In keeping with this rule, to preserve the issue of appointment of a master, a party must specifically object to the judge making the appointment. The objection must be made at the time of the appointment or at the earliest feasible opportunity thereafter. In this case, the State could have objected to the district judge at the time of the appointment. Instead, the State chose to fully participate in the proceeding before the master without raising its objection. Failure to timely object constitutes a waiver of error. The State’s objection now in its motion for rehearing is anything but timely.

¶5We observe that the enactment of Article 1.14(b) of the Texas Code of Criminal Procedure, effective December 1, 1985 pursuant to the approval of a constitutional amendment by the voters of Texas, evidences a trend toward economy and efficiency in criminal proceedings and away from the age-old practice of “sandbagging” and “lying behind the log” to belatedly raise issues of error. See DeDonato v. State, 819 S.W.2d 164 (Tex.Cr.App.1991); State v. Oliver, 808 S.W.2d 492, 494 (Tex.Cr.App.1991); Studer v. State, 799 S.W.2d 263, 273 (Tex.Cr.App.1990).

¶6We also observe that in the instant cause the State does not aver that a new hearing, conducted specifically by the judge of the trial court, would adduce any new facts which would result in different findings of fact and conclusions of law. The State does aver that “[t]he entire harm hearing is a house of cards which could have been exposed by a presiding judge familiar with what happened at the trial of this case,” and complains that the problem with allowing the [sjpecial [mjaster to preside was that “no one could remember what happened during the trial which occurred over seven years before.” Thus, it would seem that the State’s primary complaint about the hearing was the familiarity with the original proceedings of the person presiding. The State points out that while the judge who had presided over the original proceedings was no longer on the bench, he often was a visiting judge in Harris County district courts and could have easily been substituted in. While such might satisfy the State, there is no indication that such would be done if this cause were remanded for yet another hearing over ten years after trial.

¶7As we stated in State v. Murk, 815 S.W.2d 556 (Tex.Cr.App.1991), “If one is inclined to complain of error on appeal, the rule is to raise it at trial or it is waived on appeal.” Because the State failed to timely object, any claim of error in the appointment of a master was waived. The State’s motion for rehearing is hereby overruled.3

¶8CAMPBELL, J., dissents for the reasons stated in his dissenting opinion filed in this cause on January 31, 1990, Janecka v. State, 823 S.W.2d 232 (Tex.Cr.App.1990).