Affirmed as Modified and Majority and Dissenting Opinions filed May 12, 2009.
In The
Fourteenth Court of Appeals
_______________
NO. 14-07-00966-CR
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TRENARD JERMAINE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1098204
M A J O R I T Y O P I N I O N
Appellant Trenard Jermaine Smith challenges the sentence assessed following the trial court=s finding that he violated the terms of his community supervision after pleading guilty to possession of a controlled substance with intent to deliver. The trial court assessed punishment as confinement for 30 years. Appellant contends that the trial court erred in reopening the adjudication hearing after the State and the defense rested and delivered closing arguments. We affirm the judgment as modified.
Background
Appellant was charged on December 28, 2006 with possession of between four and 200 grams of cocaine with intent to deliver. On January 8, 2007, appellant waived indictment and pleaded guilty to this offense in open court. The trial court sentenced appellant to deferred adjudication and five years of community supervision pursuant to the State=s recommendation.
At the January 8 hearing, the trial court admonished appellant regarding the terms and conditions of his community supervision. The trial court informed appellant that any violation of these terms and conditions could subject him to any punishment within the statutory range for the offense charged. The trial court notified appellant that the offense charged was a first degree felony punishable by imprisonment from five to 99 years.
On April 29, 2007, appellant was arrested after allegedly robbing Jose Herrera at gunpoint. On May 3, 2007, the State filed a motion to adjudicate guilt that alleged 12 violations by appellant of the terms and conditions of his community supervision, including the armed robbery of Herrera.
On September 11, 2007, the trial court began a hearing on the State=s motion to adjudicate appellant=s guilt. Appellant waived formal reading of the motion and pleaded not true to the alleged violations of his community supervision.
During the September 11 hearing, Houston Police Officer Randy West testified regarding his investigation into the armed robbery of Jose Herrera on April 29, 2007. After presentation of three witnesses by the State, both sides rested, closed, and delivered closing arguments. Herrera did not testify before closing arguments. Appellant argued for a sentence Ain the minimum range of punishment,@ while the State argued for a sentence of confinement for at least 20 years.
The trial court found that appellant violated his community supervision in that he failed to (1) report to his community supervision officer; (2) perform community service; (3) obtain an evaluation for drug treatment; (4) make efforts to begin drug treatment and aftercare via the STAR Drug Court Program; (5) provide and remain at the same address; and (6) obtain an offender identification card. The trial court stated that there was Aevidence of other very serious, perhaps even more serious violations,@ but made no findings with regard to those allegations. The trial court then found appellant guilty of the first degree felony offense of possession of a controlled substance with intent to deliver, ordered a pre-sentence investigation report, and went into recess.
The trial court allowed the State to reopen the hearing 24 minutes later to present testimony from Jose Herrera about being robbed by appellant at gunpoint. The following exchange occurred:
COURT: All right. Let the record reflect that we recessed earlier in 1098204, the State of Texas versus Trenard Jermane [sic] Smith. The Court had made certain findings, not made other findings. The Court has now been apprised that their witness, Jose Herrera, is now present. The court is going to allow the State to reopen. The Court is going to do that for the reason that the testimony of Mr. Herrera would certainly be relevant and admissible on the matter of punishment, which the Court is now considering in Cause No. 1098204. It would be supercilious to rule that while it would be admissible if _ for punishment, it would be inadmissible, since this is not some 24 minutes after the Court had made its previous findings.
The Court is going to allow the State to reopen and present that testimony for the substance of the violations of probation.
Both sides ready to proceed again?
STATE: Yes, your Honor.
COUNSEL: At this time, I would object to proceeding any further. I would ask the record to reflect C
COURT: Your objection will be overruled.
Call your next.
The State then called Herrera. The trial court recessed the proceedings after Herrera=s testimony.
On November 12, 2007, the trial court reconvened to sentence appellant. Both sides again delivered closing arguments and repeated their sentencing requests from the closing arguments of September 11. The trial court found the allegations Awith regard to committing the felony offense of aggravated robbery are true.@
The trial court sentenced appellant to confinement for 30 years for the felony offense of possession of a controlled substance with intent to deliver. The trial court=s written judgment signed on November 12, 2007 reflects commission of an offense against the state of Texas as the only violation of the terms and conditions of community supervision committed by appellant.[1]
Analysis
I. Did the Trial Court Err When It Reopened the Adjudication Hearing?
Relying on article 36.02 of the Texas Code of Criminal Procedure, appellant contends that the trial court erred in reopening the adjudication hearing after both sides rested and delivered closing arguments. We address this argument on the merits.[2]
A. Does Article 36.02 Apply to an Adjudication Hearing?
As a threshold matter, we consider whether article 36.02 applies to a probation-revocation hearing. Article 36.02 reads in full: AThe court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that is necessary to a due administration of justice.@ Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007) (emphasis added).
The Court of Criminal Appeals recently suggested that article 36.02=s application to Atrial without jury@ has not been resolved. See Rodriguez v. State (Rodriguez I), No. PD-0869-05, 2006 WL 2706859, at *2 (Tex. Crim. App. Sept. 20, 2006) (per curiam, not designated for publication). The Court of Criminal Appeals decided Rodriguez I on other grounds, appearing to leave the question of article 36.02=s applicability to non-jury trials unsettled. See id. (AThe issue of whether Article 36.02 applies to trial without jury is important. It is not clear that the issue is squarely before us.@). Rodriguez I arose in the context of a bench trial, not a probation-revocation hearing. See id. at *1.
Courts of appeals have reached differing conclusions regarding article 36.02=s applicability specifically to probation-revocation hearings and related proceedings. Compare Peacock v. State, 27 S.W.3d 657, 659 (Tex. App.CWaco 2000) (article 36.02 inapplicable to pre-revocation hearing on motion to dismiss revocation motion for lack of due diligence), rev=d on other grounds, 77 S.W.3d 285 (Tex. Crim. App. 2002), with Freeman v. State, 917 S.W.2d 512, 514 (Tex. App.CFort Worth 1996, no pet.) (applying article 36.02 to hearing on motion to revoke community supervision), and Cantu v. State, 662 S.W.2d 455, 458 (Tex. App.CCorpus Christi 1983, no pet.) (AAlthough Art. 36.02 . . . applies only to trials before the jury, the same general rule should be no less applicable to probation hearings, which by their very nature are administrative in nature@). However, the Court of Criminal Appeals previously has applied article 36.02 specifically to a probation revocation hearing. See Stout v. State, 500 S.W.2d 153, 154 (Tex. Crim. App. 1973).
In Stout, the appellant was placed on probation after pleading guilty to possession of LSD. Id. at 154. Among other conditions of probation, he was required to A[r]emain within the confines of Potter, Randall, and Armstrong Counties of the State of Texas during the term of probation except by written permission of this court, to be filed with the clerk of this court.@ Id. The State asked the trial court to revoke probation based on an alleged violation of this condition. Id. During the revocation hearing, Potter County probation officers testified that appellant had been jailed in Minnesota at a time when he did not have permission to leave the specified counties. Id. In response to appellant=s challenge at the close of the State=s case to the sufficiency of the evidence, the trial court allowed the State to reopen the evidence and adduce additional proof that no written permission to travel was on file with the clerk. Id. The trial court then revoked appellant=s probation. Id.
The Court of Criminal Appeals held that the trial court did not abuse its discretion in revoking appellant=s probation. Id. In so doing, the Court of Criminal Appeals (1) expressly noted that the trial court had allowed the State to reopen the evidence at the close of the State=s case and introduce additional evidence; and (2) stated as follows: AIt is well established that the court may >allow testimony to be introduced at any time before the argument of the cause is concluded.=@ Id. (citing Freeman v. State, 491 S.W.2d 408 (Tex. Crim. App. 1973), Butler v. State, 486 S.W.2d 331 (Tex. Crim. App. 1972), and article 36.02).[3]
We conclude that the threshold question of article 36.02=s applicability to a probation-revocation hearing is resolved by Stout, and that article 36.02 applies here.[4] The State does not argue otherwise. Instead, the State argues that article 36.02 was not violated; alternatively, the State argues that any violation of Article 36.02 was harmless error.
B. Did the Trial Court Violate Article 36.02?
Ordinarily, we review a trial court=s decision on a motion to reopen for abuse of discretion. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). Article 36.02 acts as a limitation on the trial court=s discretion to reopen a proceeding and hear more evidence once argument has concluded. See Rodriguez v. State (Rodriguez II), No. 08-03-00459-CR, 2008 WL 963865, at *2 (Tex. App.CEl Paso Apr. 10, 2008, pet. ref=d) (not designated for publication). According to the State, A[T]he main issue in this case is whether the argument of the cause had concluded before Herrera took the stand.@
The circumstances here parallel those in Rodriguez II and Allman v. State, 164 S.W.3d 717 (Tex. App.CAustin 2005, no pet.), with regard to determining when argument has concluded. In Rodriguez II, the defendant was found guilty of felony DWI by the trial court. Rodriguez II, 2008 WL 963865, at *1. At trial, both sides rested and made brief closing arguments. Id. After closing arguments, the trial court asked if evidence had been presented regarding the defendant=s previous DWI convictions in the enhancement paragraphs alleged. Id. The prosecution made a motion to reopen its case, which was granted over defense counsel=s objection. Id. Following introduction of evidence of the defendant=s previous DWI convictions, the two sides rested again, this time without presenting further arguments. Id. The trial court found the defendant guilty and then sentenced him. Id.
The El Paso Court of Appeals stated that Athe determination of whether argument had ended must be made on a case-by-case basis. The reviewing court must examine the records as a whole in light of the totality of the circumstances of the trial.@ Id. at *2. The court further opined that once a court begins the deliberation process in a unitary trial, argument has definitely ended. Id. The court then held that argument in the case had concluded before the trial court reopened the proceeding, and that the trial court therefore violated article 36.02. Id. at *3.
The State argues that the decision of the court in a unitary trial is not fixed until judgment has been rendered on both guilt and punishment, and that argument therefore has not concluded until after pronouncement of sentence. The State relies on Barfield v. State, 63 S.W.3d 446, 448-51 (Tex. Crim. App. 2001), to support this assertion. But Rodriguez II held that Barfield is Anot applicable since no further evidence could be presented after arguments had concluded.@ Rodriguez II, 2008 WL 963865, at *3. The State asserts that ARodriguez [II] will almost certainly be overruled by the Court of Criminal Appeals.@ To the contrary, the Court of Criminal Appeals refused the State=s petition for discretionary review on September 10, 2008. In light of the analysis found in Rodriguez II concerning this point, we conclude that the State misplaces its reliance on Barfield.
In Allman, the defendant pleaded guilty to manufacturing methamphetamine. Allman, 164 S.W.3d at 718. The trial court accepted the defendant=s guilty plea, but withheld its verdict while awaiting a pre-sentencing report. Id. at 719. Trial resumed six weeks later, at which point the defendant presented testimony that he was cooperating with Georgia authorities on a pending case against family members in that state. Id. Both sides then rested and delivered closing arguments. Id.
Following the noon recess, the prosecutor told the trial court that he had spoken with Georgia authorities during the recess and that they refuted the defendant=s claim of cooperation. Id. at 719-20. The prosecution then moved to reopen the case, which the trial court granted over defense counsel=s objection. Id. at 720. Both sides and the court questioned the defendant about the Georgia offenses, after which both sides again rested and gave brief closing arguments. Id. The trial court again adjudged the defendant guilty and imposed sentence. Id.
The Austin Court of Appeals held that argument in the case had concluded prior to the noon recess, and that A[w]hatever the trial court might have believed or desired, article 36.02 prohibited further evidence at that point in the proceeding.@ Id. at 720-21. Recognizing that a bench trial is often conducted with less formality than a jury trial, the court nonetheless held that the trial court clearly violated article 36.02. Id. at 721.
The record in this case establishes the following: (1) the trial court heard testimony regarding numerous violations of community supervision, and from Officer West regarding the armed robbery committed against Herrera; (2) both sides rested, closed, and delivered closing arguments; (3) the trial court found that appellant committed six violations but expressly made no finding that he committed armed robbery; (4) the trial court found appellant guilty, ordered a pre-sentence report, and went into recess; (5) the trial court reopened the hearing 24 minutes later over appellant=s objection to hear testimony from Herrera regarding the armed robbery Afor the substance of the violations of probation;@ (6) the trial court reconvened for sentencing two months later, at which time both sides again delivered closing arguments and repeated their previous sentencing requests; and (7) the trial court then found the allegations that appellant committed felony aggravated armed robbery to be true and sentenced appellant to confinement for 30 years.
These circumstances demonstrate that argument concluded once both sides had rested, closed, and delivered closing arguments on September 11, 2007. As a result, the trial court abused its discretion and violated article 36.02 by reopening the proceeding to allow Herrera=s testimony after argument had concluded. See Rodriguez II, 2008 WL 963865, at *3; Allman, 164 S.W.3d at 721.
II. Was the Error Harmless?
Having decided that the trial court violated article 36.02 by reopening the adjudication hearing for admission of additional evidence, we now must determine if this error requires reversal.
We disregard non-constitutional errors that do not affect substantial rights. Tex. R. App. P. 44.2(b). To determine whether an error affected a substantial right in a non-jury case, we consider whether the error denied the complaining party some right to which he was legally entitled. See Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002). In determining harm, we consider the entire record. See id. at 349. If it appears that a non-constitutional error did not influence the result or had only a slight effect, we should not overturn a criminal conviction. See Cruz v. State, 122 S.W.3d 309, 315 (Tex. App.CHouston [1st Dist.] 2003, no pet.).
The weight of the evidence of a defendant=s guilt is a relevant factor in conducting a harm analysis under Rule 44.2(b). Motilla v. State, 78 S.W.3d 352, 360 (Tex. Crim. App. 2002). The character of the alleged error and how it may be considered in connection with other evidence in the case also are relevant. Id. at 359.
We conclude that appellant cannot establish harmful error on this record. When several violations of the terms and conditions of community supervision are found by the trial court, the order revoking community supervision shall be affirmed if the proof of any alleged violation is sufficient. Moore v. State, 11 S.W.3d 495, 498 (Tex. App.CHouston [14th Dist.] 2000, no pet.); Hart v. State, No. 14-08-00612-CR, 2009 WL 508206, at *1 (Tex. App.CHouston [14th Dist.] Mar. 3, 2009, no pet.). The trial court made explicit findings that appellant violated his community supervision in that he failed to (1) report to his community supervision officer; (2) perform community service; (3) obtain an evaluation for drug treatment; (4) make efforts to begin drug treatment and aftercare via the STAR Drug Court Program; (5) provide and remain at the same address; and (6) obtain an offender identification card. Because any one of these violations alone would be sufficient to affirm the trial court=s order, appellant cannot show that he was harmed by any erroneously admitted testimony by Herrera that was unrelated to these six specific findings. See Moore, 11 S.W.3d at 498; Hart, 2009 WL 508206, at *1.
The sufficiency of the above findings to support the sentence imposed on appellant distinguishes this case from Allman and Rodriguez II, in which the violations of article 36.02 constituted harmful error.
The defendant in Rodriguez I and II was accused of driving while intoxicated and having two prior DWI convictions, thus enhancing to a felony an offense that otherwise would have been a misdemeanor. Rodriguez I, 2006 WL 2706859, at *1 (citing Tex. Penal Code Ann. _ 49.09(b) (Vernon 2003)). The trial court heard no evidence establishing the two prior convictions until after reopening the case. Id. at *1-*2. After hearing this additional evidence, the court found the defendant guilty of the felony offense. Id. at *2. Because the court could not have found the defendant guilty of a felony without the additional evidence, the defendant was harmed by the violation. See Rodriguez II, 2008 WL 963865, at *3.
Here, in contrast to Rodriguez I and II, the trial court made findings before reopening the case that independently were sufficient to support the sentence ultimately pronounced. These circumstances differ from Rodriguez I and II, where the felony offense was legally unsupportable without the additional evidence. See id.
In Allman, the defendant was arrested in Georgia and charged with manufacturing methamphetamine and several related offenses while free on bond following his arrest for manufacturing methamphetamine in Texas. Allman, 164 S.W.3d at 719. The only charge the defendant faced in Texas was the manufacturing charge, to which he pleaded guilty. See id. The defendant told his probation officer that all charges in Georgia were dropped except a minor traffic violation because he was cooperating with Georgia authorities in a case against his father-in-law; this information was included in the pre-sentencing report given to the trial court. Id. The defendant also testified in court that he was cooperating with Georgia authorities and had nothing to do with his in-laws= unlawful activities there. Id. The defendant requested community supervision, citing his cooperation with Georgia authorities. Id.
The trial court heard no other evidence regarding the Georgia charges or the defendant=s asserted cooperation until after reopening the case. Id. at 719-20. The trial judge stated as he reopened the case: A[M]y concern was . . . to see if what the defendant said was in fact true, because it would make a difference as to _ or possibly could make a difference as to what this Court would do.@ Id. at 720. The first condition of community supervision found in the statutory list is that the defendant A[c]ommit no offense against the laws of this State or of any other State or the United States.@ Tex. Code Crim. Proc. Ann. art. 42.12, _ 11(a)(1) (Vernon 2007). The trial court sentenced the defendant to confinement for 25 years after hearing evidence that he still was facing drug charges and was not cooperating with Georgia authorities. Allman, 164 S.W.3d at 720. Based on the length of sentence imposed for the defendant=s lone Texas offense and the trial court=s statement that the belated evidence Apossibly could@ affect its sentencing decision, the court of appeals held that the article 36.02 violation harmed the defendant. Id. at 721.
Here, in contrast to Allman, the additional evidence at issue did not contradict earlier testimony offered in an effort to obtain leniency. See id. at 720-21. Further, unlike Allman, the trial court here gave no indication on the record that the additional evidence could make a difference as to the sentence imposed. See id. at 721. We conclude that appellant has failed to show harmful error from the trial court=s violation of article 36.02. See Johnson, 72 S.W.3d at 348-49; Cruz, 122 S.W.3d at 315; Tex. R. App. P. 44.2(b).
This conclusion is reinforced because a penalty assessed within the proper punishment range generally will not be disturbed on appeal. Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)). Possession of between four and 200 grams of cocaine with intent to deliver is punishable by confinement for no less than five and no more than 99 years and a fine of up to $10,000. See Tex. Health & Safety Code Ann. _ 481.112(d) (Vernon 2003); Tex. Penal Code Ann. _ 12.32(a), (b) (Vernon 2003). Appellant received a sentence on the lower end of the range permitted by the statute. Considering the weight of the evidence and the entirety of the record, as we must, we cannot say that Herrera=s untimely testimony affected a substantial right of appellant because he had no right under the governing statute to receive a lower sentence than the trial court imposed. See Johnson, 72 S.W.3d at 348-49; Cruz, 122 S.W.3d at 315.
The circumstance remains that the trial court=s judgment relies on the armed robbery of Herrera, but the court=s oral pronouncement relies on other community supervision violations. When there is a conflict between the oral pronouncement of sentence in open court and the sentence set out in the written judgment, the oral pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in such a situation is to modify the written judgment to conform to the trial court=s oral pronouncement. See id. The same conclusion applies here with respect to the conflict between the trial court=s oral pronouncement of the findings supporting revocation of community supervision and the later written judgment. See id.; see also Smith v. State, 790 S.W.2d 366, 368 (Tex. App.CHouston [1st Dist.] 1990, pet. ref=d) (modifying order revoking probation to include trial court=s oral pronouncement that defendant failed to maintain employment); Moakler v. State, No. 01-00-00945-CR, 2003 WL 1889094, at *2 (Tex. App.CHouston [1st Dist.] Apr. 17, 2003, no pet.) (mem. op., not designated for publication) (modifying order revoking community supervision to include failure to register as a sex offender); Turner v. State, No. 05-02-00329-CR, 2002 WL 31151226, at *2 (Tex. App.CDallas Sept. 27, 2002, no pet.) (not designated for publication) (modifying order revoking probation to delete failure to perform community service where trial court made no oral pronouncement finding the allegation to be true); Tex. R. App. P. 43.2(b).
The record reflects at least six violations of the terms and conditions of community supervision committed by appellant. The trial court made explicit oral findings that appellant committed those violations, and that they warranted revocation of appellant=s community supervision and issuance of an active sentence of confinement. Because the record supplies sufficient information to make the written judgment conform with the oral pronouncement and findings of the trial court, we modify the written judgment to reflect the six violations explicitly found by the trial court during the adjudication hearing. See Tex. R. App. P. 43.2(b).
We overrule appellant=s issue regarding the trial court=s decision to reopen the adjudication hearing to allow Herrera=s testimony, and we modify the trial court=s written judgment to reflect the oral pronouncement of the trial court.
Conclusion
The trial court=s judgment is affirmed as modified.
/s/ William J. Boyce
Justice
Panel consists of Justices Frost, Brown, and Boyce. (Frost, J., dissenting).
Publish C Tex. R. App. P. 47.2(b).
1 Article 42.12, section 5(b) of the Code of Criminal Procedure was amended during the 2007 legislative session to allow appeals from a decision to adjudicate guilt. Act of June 15, 2007, 80th Leg., R.S., ch. 1308, _ 5, 2007 Tex. Sess. Law Serv. ch. 1308. The amended statute took effect on June 15, 2007, and the new provision applies only to a hearing conducted on or after that date. Because appellant=s hearing was held on September 11, 2007, we have jurisdiction over this appeal.
[2] Contrary to the dissent, we conclude that appellant=s timely objection in the trial court preserved this issue for appeal. A[W]hen it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost.@ Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc). ABut otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.@ Id. In light of the colloquy between appellant=s counsel and the trial court, we are satisfied that appellant Aeffectively . . . communicate[d] his desire,@ and that the trial court understood the nature of appellant=s objection even if the objection itself did not reference a specific statutory provision. The objection suffices when viewed in context. See id. at 909-911; see also Clarke v. State, 270 S.W.3d 573, 579-80 (Tex. Crim. App. 2008) (citing Lankston, 827 S.W.2d at 909). This conclusion is underscored by the trial court=s action in abruptly overruling the objection while appellant=s counsel was in mid-sentence, and immediately directing the State to call its next witness.
[3] We disagree with the dissent=s narrow reading of Stout, and with its reliance on an introductory ACf.@ signal preceding Stout=s citation of article 36.02 to limit the opinion=s reach. The phrase Aallow testimony to be introduced at any time before the argument of the cause is concluded@ as quoted in Stout appears nowhere in Freeman or Butler. The quoted phrase appears in article 36.02, with the opinion using Athe@ in place of Aa@ before Acause.@ Stout=s express invocation of the quoted phrase from article 36.02 goes beyond mere reliance upon an analogous authority. The dearth of subsequent citations to Stout says more about the infrequency of appeals focusing on article 36.02=s applicability to probation-revocation hearings than it does about the scope of Stout=s holding. The dissent also misplaces its reliance on Rodriguez I, 2006 WL 2706859, at *3-4. In light of the dissent=s premise that a probation-revocation hearing is not a Atrial,@ a passing statement in Rodriguez I regarding article 36.02=s applicability to a Atrial without jury@ does not address whether article 36.02 applies to proceedings other than a Atrial without jury.@ Additionally, the phrase ATrial Before the Jury@ in the title to Chapter 36 does not limit article 36.02=s scope. See, e.g., Wheat v. State, 165 S.W.3d 802, 805 n.3 (Tex. App.CTexarkana 2005, pet. ref=d, untimely filed) (citing Tex. Gov=t Code Ann. ' 311.024 (Vernon 2005) and Tex. Code Crim. Proc. Ann. art. 101.002 (Vernon Supp. 2004-2005)).
[4] Stout=s application of article 36.02 to a probation-revocation hearing renders unnecessary the dissent=s analysis of whether a revocation hearing qualifies as a Atrial.@ Even taking as a given that a probation-revocation hearing is not a trial for purposes of certain standards and procedures, a revocation hearing nonetheless is Aa cause@ to which article 36.02 applies. See Stout, 500 S.W.2d at 154. The analysis also is not controlled by whether article 36.02 applies to hearings on motions to suppress. See Gilbert v. State, 874 S.W.2d 290, 292-93 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d); Montalvo v. State, 846 S.W.2d 133, 137 (Tex. App.CAustin 1993, no pet.). A revocation hearing is more than Aa specialized objection,@ see Montalvo, 846 S.W.2d at 137, even if it does not share all the attributes of a full-fledged trial. The broader issue of whether article 36.02 applies to trial without jury or to other types of proceedings need not be resolved here; the narrow issue of article 36.02=s applicability to a revocation hearing is all that need be addressed. This narrow issue is resolved by Stout, which expressly applied article 36.02 in this context. See 500 S.W.2d at 154. We do the same.