                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00265-CR



      RICTARICK TAMERO PALMER, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 124th District Court
                 Gregg County, Texas
               Trial Court No. 38611-B




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                               MEMORANDUM OPINION
       In 2010, Rictarick Tamero Palmer entered an open plea of guilty to the offense of

possession of marihuana in an amount greater than five pounds but less than fifty pounds. After

hearing testimony, the trial court (1) sentenced Palmer to ten years’ confinement and ordered

him to pay a $1,000.00 fine, (2) suspended the sentence, and (3) placed Palmer on community

supervision for a period of seven years. In 2013, the trial court found that Palmer had violated

the terms and conditions of his community supervision. Accordingly, the trial court sentenced

Palmer to seven years’ confinement for the underlying offense and ordered him to pay a $554.00

fine. On appeal, Palmer argues that, because his sentence is grossly disproportionate to the crime

of which he was convicted, it constitutes cruel and unusual punishment prohibited by the Eighth

Amendment. We find that error has not been preserved. Because the judgment misspells

Palmer’s name, we modify the judgment to correct this clerical error and affirm the trial court’s

judgment as modified.

       To preserve a complaint for our review, a party must first present to the trial court a

timely request, objection, or motion stating the specific grounds for the desired ruling if not

apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1).

Further, the trial court must have ruled on the request, objection, or motion, either expressly or

implicitly, or the complaining party must have objected to the trial court’s refusal to rule. TEX.

R. APP. P. 33.1(a)(2).

       An appellant claiming a disproportionate sentence is not excused from the necessity of

error preservation. See Stewart v. LaGrand, 526 U.S. 115, 119 (1999) (appellant waived Eighth


                                                2
Amendment complaint); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Thus,

“[a] constitutionality challenge based on application to the defendant’s case cannot be raised for

the first time on appeal.” Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003,

no pet.) (citing Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App. 1990); Smith v. State, 10

S.W.3d 48, 49 (Tex. App.—Texarkana 1999, no pet.)); see Garcia v. State, 887 S.W.2d 846, 861

(Tex. Crim. App. 1994).

        We have reviewed the records of the trial proceeding and conclude that Palmer made no

request, objection, or motion complaining of a disproportionate sentence. And, while this Court

has held that a motion for new trial is an appropriate way to preserve this type of claim for

review and while Palmer filed a motion for new trial, Palmer’s motion for new trial made no

mention of any claim of cruel and unusual punishment or disproportionate sentence.            See

Williamson v. State, 175 S.W.3d 522, 523–24 (Tex. App.—Texarkana 2005, no pet.) (citing

Delacruz v. State, 167 S.W.3d 904, 905 (Tex. App.—Texarkana 2005, no pet.)).

        Here, Palmer did not raise a disproportionate punishment complaint when the trial court

imposed his sentence, in a motion for new trial, or in any other type of post-verdict motion.

Accordingly, Palmer has forfeited his complaint that his sentence is disproportionate. See Kim v.

State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009 pet. ref’d). As a reviewing court, we

should not address the merits of an issue that has not been preserved for appeal. Wilson v. State,

311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g) (per curiam); Sample v. State, 405

S.W.3d 295, 300 (Tex. App.—Fort Worth 2013, pet. ref’d). Accordingly, we overrule Palmer’s

sole point or error.

                                                3
       We must, however, modify the trial court’s judgment in this case. We have authority to

modify judgments to make the record speak the truth when the matter has been called to our

attention by any source. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). “Our

authority to reform incorrect judgments is not dependent on the request of any party, nor does it

turn on a question of whether a party has or has not objected in trial court; we may act sua sponte

and may have a duty to do so.” Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d

526, 531 (Tex. App.—Dallas 1991, writ ref’d)); see French, 830 S.W.2d at 609. Palmer spelled

his first name as Rictarick in open court and on documents signed by Palmer that were filed in

the clerk’s record. However, the trial court’s judgment misspells Palmer’s first name as Rictaric.

Accordingly, we modify the trial court’s judgment to correct this clerical error.

       We affirm the trial court’s judgment, as modified.



                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:        October 10, 2014
Date Decided:          October 28, 2014

Do Not Publish




                                                 4
