Charlene Ballard v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00310-CR
___________________________
CHARLENE BALLARD, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1386232W
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Charlene Ballard appeals from the trial court’s judgment adjudicating
her guilty of burglary of a habitation and sentencing her to four years’ confinement.
In her sole point, she argues that her sentence violates the Eighth Amendment
because it is grossly disproportionate to the underlying offense. Because we conclude
that Ballard failed to preserve this complaint and therefore forfeited it, we affirm.
II. BACKGROUND
The State charged Ballard with burglary of a habitation. On October 9, 2014,
pursuant to a plea-bargain agreement, Ballard pleaded guilty to that charge, and the
trial court fined her $500 and placed her on deferred-adjudication community
supervision for five years. See Tex. Penal Code Ann. § 30.02. The State subsequently
filed a petition alleging that Ballard had violated several conditions of her community
supervision and asking the trial court to proceed with an adjudication of Ballard’s guilt
on the underlying charge. The trial court held a hearing on the State’s petition, during
which Ballard pleaded “true” to each of the violations alleged in the State’s petition.
The trial court found each of the State’s allegations true, revoked Ballard’s community
2
supervision, and found her guilty of the underlying burglary charge. The trial court
sentenced her to four years’ confinement.1 Ballard timely appealed.
III. DISCUSSION
In her sole point, Ballard argues that her sentence of four years’ confinement is
grossly disproportionate to the burglary offense for which she was convicted and thus
violates the Eighth Amendment’s prohibition against cruel and unusual punishments.
See U.S. Const. amend. VIII. In response, the State maintains that Ballard forfeited
this complaint by failing to preserve it in the trial court.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion stating the specific grounds, if not
apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.
State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an
express or implicit adverse trial court ruling or object to the trial court’s refusal to
rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim.
App. 2013). With the exception of complaints predicated upon the violation of the
narrow categories of absolute or waivable-only rights, a defendant forfeits a
complaint, even a constitutional complaint, if she does not properly preserve it. See
State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009); Mendez v. State,
Ballard was charged with a second-degree-felony count of burglary, the
1
punishment for which includes a term of confinement ranging between two and
twenty years. See Tex. Penal Code Ann. §§ 12.33(a), 30.02(c)(2).
3
138 S.W.3d 334, 342 (Tex. Crim. App. 2004); see also Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012).
The sole complaint Ballard raises here—that her sentence violates the Eighth
Amendment because it is grossly disproportionate to the offense for which she was
convicted—is the kind of complaint that is forfeited if not preserved. See Banister v.
State, 551 S.W.3d 768, 769 (Tex. App.—Fort Worth 2017, no pet.). The record
reflects that Ballard did not present to the trial court the Eighth Amendment
complaint she has asserted on appeal. Accordingly, she failed to preserve that
complaint and consequently forfeited it. See Tex. R. App. P. 33.1(a); Banister,
551 S.W.3d at 769. We therefore overrule Ballard’s sole point.
IV. CONCLUSION
Having overruled Ballard’s sole point, we affirm the trial court’s judgment. See
Tex. R. App. P. 43.2(a).
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 30, 2020
4