William Bullard v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-21-00116-CR
WILLIAM BULLARD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Bosque County, Texas
Trial Court No. CR15715
MEMORANDUM OPINION
A jury found William Bullard guilty of possession of methamphetamine, a state
jail felony. At the punishment phase, Bullard entered pleas of true to both enhancement
allegations alleged in the indictment, and the jury assessed his punishment at fifteen
years in prison and a $5,000 fine. The trial court sentenced Bullard accordingly but
waived the fine. This appeal ensued. We will affirm.
Issues
Bullard’s brief does not include an “Issues Presented” 1 section; however, Bullard
argues that this appeal is based on the fact that during jury selection, the prospective
jurors were not questioned about the possible enhanced range of punishment of two to
twenty years’ incarceration. Bullard contends that article 36.01 of the Code of Criminal
Procedure is unconstitutional because it precluded Bullard from questioning the
prospective jurors on the possible enhanced range of punishment, which amounted to a
denial of Bullard’s right to a fair trial. Bullard also appears to argue that the trial court
erred in charging the jury at the punishment phase on the enhanced range of punishment.
Constitutionality of Article 36.01
We begin with Bullard’s challenge to the constitutionality of article 36.01 of the
Code of Criminal Procedure.
AUTHORITY
A facial challenge to the constitutionality of a statute can be forfeited if not
challenged in the trial court; such a challenge may not be raised for the first time on
appeal. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). An as-applied
challenge to the constitutionality of a statute can also be forfeited by a failure to object in
the trial court. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995).
1 See TEX. R. APP. P. 38.1(f).
Bullard v. State Page 2
ANALYSIS
The record before us reflects that Bullard did not object in the trial court that article
36.01 of the Code of Criminal Procedure was unconstitutional. Bullard contends that his
objection to the trial court instructing the jury in the punishment charge that the range of
punishment was by imprisonment in the Texas Department of Criminal Justice for any
term of not more than twenty years or less than two years was sufficient to preserve his
constitutional challenge on appeal. But “an objection at trial that does not comport with
the complaint on appeal presents nothing for review.” Chambers v. State, 903 S.W.2d 21,
32 (Tex. Crim. App. 1995).
Because no specific, timely constitutional challenge was made in the trial court,
Bullard’s constitutional challenge is not preserved for our review. See TEX. R. APP. P.
33.1(a); Karenev, 281 S.W.3d at 434; Curry, 910 S.W.2d at 496.
Denial of Questioning on Range of Punishment
Bullard also contends in his brief “that at trial, he was precluded from examining
prospective jurors on the punishment range he would face at trial.”
AUTHORITY
To have preserved a complaint for appellate review, Rule of Appellate Procedure
33.1 requires that: (1) the complaining party made a timely and specific request,
objection, or motion; and (2) either the trial court ruled on the request, objection, or
motion, or the trial court refused to rule, and the complaining party objected to that
Bullard v. State Page 3
refusal. TEX. R. APP. P. 33.1(a); see Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App.
2003). “The purpose of a timely objection is to give the trial judge the opportunity to cure
error.” Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). We review for an
abuse of discretion when deciding appeals concerning the manner of jury selection, and
it is essential that the record before us present a question asked during jury selection that
the trial judge has not allowed to be answered. Cockrum v. State, 758 S.W.2d 577, 584 (Tex.
Crim. App. 1988). “If counsel refrains, for what ever reason, from asking a question, the
judge is denied the opportunity to make a ruling. Thus, we are unable to review the
correctness of a ruling which was never made.” Id.ANALYSIS
The record reflects that the trial court never prohibited Bullard from questioning
the prospective jurors on the enhanced range of punishment, nor did Bullard ever
attempt to question the prospective jurors on the enhanced range of punishment.
Because Bullard never asked the prospective jurors about the enhanced range of
punishment, the trial court never ruled on this issue.
[A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to
let the trial judge know what he wants, why he thinks himself entitled to it,
and to do so clearly enough for the judge to understand him at a time when
the trial court is in a proper position to do something about it.
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Because Bullard did not do
so, Bullard’s complaint that he was denied the right to question the prospective jurors on
the enhanced range of punishment is not preserved for our review.
Bullard v. State Page 4
Punishment Charge Objection
We will next address Bullard’s argument that the trial court erred in instructing
the jury on the enhanced range of punishment in the punishment charge. Bullard argues
that this was error when the prospective jurors were not questioned about the enhanced
range of punishment. But, if Bullard wanted the jury to be informed or questioned
regarding the enhanced range of punishment, Bullard could have done so during his own
jury selection. See Woodard v. State, No. 09-04-505 CR, 2005 WL 1907001, at *7 (Tex. App.—
Beaumont Aug. 10, 2005, pet. ref’d) (mem. op., not designated for publication).
Bullard pleaded true to both enhancement allegations at the punishment phase of
the trial. The jury was instructed to find the enhancement allegations true, and it did so
on its verdict form.
Section 12.425(b) of the Penal Code requires that a defendant shall be punished for
a felony of the second degree if “the defendant has previously been finally convicted of
two felonies other than a state jail felony punishable under Section 12.35(a), and the
second previous felony conviction is for an offense that occurred subsequent to the first
previous conviction having become final . . . .” TEX. PENAL CODE ANN. § 12.425(b).
With Bullard’s pleas of true to both enhancement allegations and the admission of
penitentiary packets containing the judgments of conviction for both enhancement
allegations, the trial court was required to instruct the jury that the range of punishment
Bullard v. State Page 5
was by imprisonment in the Texas Department of Criminal Justice for any term of not
more than twenty years or less than two years.
We overrule Bullard’s complaint that the punishment charge incorrectly
instructed the jury on the range of punishment.
Conclusion
We affirm the judgment of the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed December 21, 2022
Do not publish
[CR25]
Bullard v. State Page 6