William Bullard v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 21, 2022
• Docket: 10-21-00116-CR
• Status: Published

Opinion

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.”

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