Affirmed and Memorandum Opinion filed August 2, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00258-CR

                    TOMMIE RAY LIMBRICK, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1389665

                 MEMORANDUM                     OPINION


      Appellant, Tommie Ray Limbrick, appeals his conviction for aggravated
sexual assault of a child younger than fourteen years of age, contending (1) he
received ineffective assistance of counsel, and (2) that his sentence of ten years’
imprisonment constitutes cruel and unusual punishment. We affirm.
                                 I.    BACKGROUND

      Appellant was charged with aggravated assault of a child under fourteen
years of age. Appellant pled guilty to the offense and the case was set for a
sentencing hearing on February 16, 2015. Following the hearing, appellant was
sentenced to ten years’ confinement.

                    II.   INEFFECTIVE ASSISTANCE OF COUNSEL

      In appellant’s first issue, he contends trial counsel provided ineffective
assistance of counsel by (1) failing to file a sworn motion for probation; and (2)
failing to object to the ten year sentence as cruel and unusual punishment in
violation of the eighth amendment.

      To prevail on an ineffective-assistance claim, appellant must prove (1)
counsel’s representation fell below the objective standard of reasonableness, and
(2) there is a reasonable probability that but for counsel’s deficiency the result of
the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 694 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).
We apply the same two-prong Strickland standard of review for ineffective
assistance of counsel claims in both the guilt/innocence phase of trial and the
punishment phase of trial. Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex.
Crim. App. 1999).

      To establish the first prong, the appellant must prove by a preponderance of
the evidence that counsel’s representation fell below the objective standard of
prevailing professional norms. Hernandez, 726 S.W.2d at 78. “[A] court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the



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presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Id. at 79.

      Ineffective assistance of counsel prejudices a criminal defendant if there is a
reasonable probability that, but for counsel’s deficiency, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.;
Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012).

   1. Sworn Motion for Probation

      Appellant contends he received ineffective assistance of counsel because his
trial counsel failed to file a sworn motion for probation. Appellant recognizes that
he was not eligible for probation from either a jury or the court given that he was
charged with aggravated sexual assault of a child under fourteen years of age. See
Tex. Code Crim. Proc. art. 42.12 § 3g (a)(1)(E). However, he argues the court
could have deferred a finding of guilt and placed him on deferred adjudication, see
id. § 5(a), had trial counsel filed a motion requesting it. Appellant’s argument is
without merit.

      According to Texas Code of Criminal Procedure article 42.12 section
(4)(d)(3) and (e), a defendant must file a written sworn application for community
supervision before a jury may consider him or her for community supervision. See
id. § 4 (d)(3), (e) (requiring written and sworn motion for “jury recommended
community supervision”). However, where the judge is asked to assess punishment
after a plea of guilty and the defendant seeks community supervision, as here, a
written sworn motion is not required. See id. § 3 (lacking reference to motion for
“judge ordered community supervision”); id. § 5 (lacking reference to motion for
“deferred adjudication; community supervision”).


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       In the instant case, punishment was not assessed by a jury, but by the trial
court. Thus, no sworn motion was required and trial counsel’s failure to file one
does not constitute ineffective assistance. See George v. State, 03-05-00415-CR,
2007 WL 1451995, at *4 (Tex. App.—Austin May 16, 2007, no pet.) (mem. op.,
not designated for publication) (holding “[a]n application for probation is only
required when punishment is assessed by a jury” and therefore “[c]ounsel’s
performance cannot be considered deficient based on his failure to file an
unnecessary motion.”); see also Huynh v. State, 833 S.W.2d 636, 638 (Tex.
App.—Houston [14th Dist.] 1992, no pet.) (holding same); Washington v. State,
01-13-00369-CR, 2014 WL 4658476, at *4 (Tex. App.—Houston [1st Dist.] Sept.
18, 2014, no pet.) (mem. op., not designated for publication) (holding same). We
conclude that appellant has failed to satisfy the first prong of the test for ineffective
assistance of counsel. Hernandez, 726 S.W.2d at 78.

   2. Objection to Sentence

       Appellant argues trial counsel’s failure to object to appellant’s sentence as
cruel and unusual punishment constitutes ineffective assistance of counsel. “To
establish ineffective assistance of counsel based on a failure to object, appellant
must demonstrate that the trial court would have committed harmful error in
overruling the objection if trial counsel had objected.” DeLeon v. State, 322
S.W.3d 375, 381 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing
Alexander v. State, 282 S.W.3d 701, 705 (Tex. App.—Houston [14th Dist.] 2009,
pet. ref’d).

       The range of punishment for the crime to which appellant pled guilty was “a
term of life or any term of not more than 99 years or less than 5 years in the
Institutional Division of the Texas Department of Criminal Justice . . . .” See Tex.
Pen. Code Ann. § 22.021; Tex. Pen. Code Ann. § 12.32. Appellant’s sentence of

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ten years’ confinement lies within that range, and is therefore not cruel and unusual
punishment. See Jagaroo v. State, 180 S.W.3d 793, 800 (Tex. App.—Houston
[14th Dist.] 2005, pet. ref’d)(concluding that punishment within statutory range
does not constitute cruel and unusual punishment). Thus appellant cannot
demonstrate the trial court would have erred in overruling any objection to the ten-
year sentence. “It is not ineffective assistance for counsel to forego making
frivolous arguments and objections.” Id. (citing Edmond v. State, 116 S.W.3d 110,
115 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)). Accordingly, appellant
has not satisfied the first Strickland prong.

      Having found appellant failed to establish counsel’s representation fell
below the objective standard of reasonableness in either instance raised on appeal,
we overrule appellant’s first issue.

                       III.   CRUEL AND UNUSUAL PUNISHMENT

      In his second issue, appellant contends that his sentence of ten years’
imprisonment constitutes cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution.

      Appellant did not raise this argument with the trial court, and thus has failed
to preserve the issue for our review on appeal.1 See Rhoades v. State, 934 S.W.2d
113, 120 (Tex. Crim. App. 1996) (holding defendant failed to preserve his cruel
and unusual punishment claim by not raising it in the trial court); see also Finister
v. State, 14-01-01154-CR, 2003 WL 1922588, at *2 (Tex. App.—Houston [14th
Dist.] Apr. 24, 2003, pet. ref’d) (mem. op., not designated for publication)
(defendant argued his plea-bargained sentence constituted cruel and unusual
punishment, but failed to raise the argument with the trial court, thus failing to
      1
         Appellant concedes he failed to make this objection at trial, but argues his plea-
bargained sentence is fundamental error.

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preserve the issue for review on appeal). Further, as noted above, appellant’s
sentence of ten years is within the applicable range of punishment and is therefore
not cruel and unusual punishment. See Jagaroo, 180 S.W.3d at 800. Accordingly,
appellant’s second issue is overruled.

                                 IV.      CONCLUSION

      Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.




                                         /s/       John Donovan
                                                   Justice



Panel consists of Justices Jamison, Donovan, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




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