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


                  No. 06-19-00138-CR



          MICHELLE LEE HAYES, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 71st District Court
                Harrison County, Texas
               Trial Court No. 17-0327X




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
         Having been placed earlier on deferred adjudication community supervision 1 for a period

of ten years and ordered to pay a $2,500.00 fine, Michelle Lee Hayes judicially confessed to

violating the terms and conditions of her deferred adjudication community supervision by

consuming alcohol. As a result, the trial court adjudicated her guilt and sentenced her to fifteen

years’ imprisonment.

         In her sole point of error on appeal, Hayes argues that her sentence violates the Eighth

Amendment to the United States Constitution because it is grossly disproportionate to the crime.

We find this issue unpreserved. However, because there was no plea agreement in this case, we

modify the trial court’s judgment to delete the reference to a plea bargain. We affirm the trial

court’s judgment, as so modified.

         Hayes admitted that she violated the terms and conditions of her deferred adjudication

community supervision by consuming alcohol. On appeal, she argues that her sentence was

grossly disproportionate to the crime she committed because she was addicted to alcohol and

because revocation based on her admission was “too harsh.” The State argues that this issue is

unpreserved. We agree.

         To preserve a complaint for our review, a party must first present 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). Also, the trial court




1
 On the underlying charge, Hayes entered an open plea of guilty and judicially confessed to intentionally or knowingly
causing serious bodily injury to a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.04(e).
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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 preserving the error.

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

complaint); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Duren v. State, 87

S.W.3d 719, 732 (Tex. App.—Texarkana 2002, pet. struck). 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, 924 (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).

       In this case, Hayes did not raise a disproportionate-punishment complaint when the trial

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

Consequently, Hayes has forfeited her complaint that her sentence was grossly 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). Since Hayes has not preserved

this complaint, we overrule her sole point of error.

       Yet, the judgment must be modified. The judgment indicates that Hayes pled guilty to the

underlying offense in exchange for ten years’ deferred adjudication and a $2,500.00 fine.

However, the record shows that Hayes did not enter into a plea agreement with the State regarding

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the adjudication. “Appellate courts ‘have the authority to reform judgments and affirm as modified

in cases where there is non-reversible error.’” Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—

Texarkana 2018, pet. ref’d) (quoting Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco

2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments)).

Accordingly, we delete the judgment’s reference to a plea agreement.

       We modify the judgment by deleting the phrase “Terms of Plea Bargain 10 years deferred

adjudication; $2,500.00 fine.” As modified, the trial court’s judgment is affirmed.




                                             Josh R. Morriss, III
                                             Chief Justice

Date Submitted:       December 31, 2019
Date Decided:         January 15, 2020

Do Not Publish




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