Opinion issued July 11, 2019




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-18-01005-CR
                           ———————————
                        TRELENN POOLE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1556673


                         MEMORANDUM OPINION

      Appellant, Trelenn Poole, has filed a motion for rehearing from this Court’s

June 13, 2019 opinion. We deny the motion for rehearing; however, we withdraw

our opinion and issue this opinion in its stead. Our judgment of June 13, 2019,

remains unchanged.
      Appellant, Trelenn Poole, pleaded guilty to aggravated robbery with a deadly

weapon,1 and after a presentence investigation, the trial court found him guilty and

assessed punishment at 25 years’ confinement. In two issues on appeal, appellant

contends that he received (1) cruel and unusual punishment and (2) ineffective

assistance of counsel. We affirm.

                                 BACKGROUND

Factual Background

      Appellant, who was carrying a gun, approached retired Houston Police

Officer Joe Aldaco and demanded Aldaco’s gold chain. Aldaco complied with

appellant’s demand, but had trouble getting the chain off his neck, so appellant said,

“Hurry up, you’re stalling.” Appellant then discharged his gun to show that he

“meant business.” Aldaco offered to break the chain to get it off, but appellant told

him not to because this was the way appellant made his living.

      After retrieving the gold chain, appellant told Aldaco to get on his knees and

asked for Aldaco’s wallet. When Aldaco opened his wallet he said, “HPD.”

Appellant then took the wallet, panicked, and ran off.

Procedural Background

      Appellant pleaded guilty to aggravated robbery with a deadly weapon. At the

close of the presentence investigation hearing, defense counsel told the trial court


1
      See TEX. PENAL CODE § 29.03(a)(2).
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that “this was not a probation case,” and asked the trial court to assess a punishment

of five years in light of appellant’s age (22 years old) and the fact that appellant had

a child. The State, in contrast, asked for a sentence of 30 years because appellant

confessed to robbing Aldaco “execution style” while he was on his knees, discharged

his weapon during the offense, and had another pending robbery case.

      The trial court assessed punishment at 25 years’ confinement.

                    CRUEL AND UNUSUAL PUNISHMENT

      In his second issue, appellant contends that “appellant received cruel and

unusual punishment where the record reflects that he received twenty-five years [in

prison] but was eligible for parole.” Specifically, appellant claims that “his sentence

is disproportionate to the offense for which he was charged and violates the Eighth

Amendment to the United States Constitution prohibiting cruel and unusual

punishment[.]”

      Failure to object properly to an error at trial, even a constitutional error,

waives the complaint on appeal. Perez v. State, 464 S.W.3d 34, 42 (Tex. App.—

Houston [1st Dist.] 2015, pet. ref’d); see also Clark v. State, 365 S.W.3d 333, 339

(Tex. Crim. App. 2012). To preserve for appellate review a complaint that a sentence

is grossly disproportionate, constituting cruel and unusual punishment, a defendant

must present to the trial court a timely request, objection, or motion stating the

specific grounds for the ruling desired. See TEX. R. APP. P. 33.1(a); see also Rhoades


                                           3
v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that defendant

waived any error regarding violation of state constitutional right against cruel and

unusual punishment because argument was presented for first time on appeal);

Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d) (holding appellant’s assertion that sentence was grossly disproportionate

waived when complaint not raised by objection in trial court or by motion for new

trial); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997,

pet. ref’d) (holding that failure to object to sentence in trial court on grounds that it

violated federal and state constitutional bans on cruel and unusual punishment

waived appellate review of those claims).

      Appellant never objected to the alleged disproportionality of his sentence

either when the trial court imposed the sentence or in a post-trial motion. We

conclude that, by failing to raise the issue with the trial court, appellant did not

preserve any challenge to the disproportionality of his sentence under either the

United States or Texas Constitution. We hold that appellant’s complaint regarding

his sentence is waived on appeal. See TEX. R. APP. P. 33.1(a); see also Rhoades, 934

S.W.2d at 120; Noland, 264 S.W.3d at 151–52; Solis, 945 S.W.2d at 301.

      Accordingly, we overrule issue two.




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                 INEFFECTIVE ASSISTANCE OF COUNSEL

      In issue one, appellant contends that he received ineffective assistance of

counsel at trial because defense counsel failed to (1) prove his eligibility for

probation, (2) argue for probation, (3) cross-examine the complainant, or (4) object

to cruel and unusual punishment.

Standard of Review

      The Sixth Amendment to the United States Constitution guarantees the right

to the reasonably effective assistance of counsel in criminal prosecutions. Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see U.S. CONST. amend. VI. To

prove a claim of ineffective assistance of counsel, appellant must show that (1) his

trial counsel’s performance fell below an objective standard of reasonableness and

(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687–88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

App. 2011). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that counsel’s performance

falls within the wide range of reasonable professional assistance or trial strategy. See

Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).


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      Appellant has the burden to establish both prongs of Strickland by a

preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.

Crim. App. 1998). “An appellant’s failure to satisfy one prong of the Strickland test

negates a court’s need to consider the other prong.” Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697. We apply the

same two-prong Strickland standard of review to claims of ineffective assistance of

counsel during both the guilt and punishment phases of trial. See Hernandez v. State,

988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999).

Failure to Cross-Examine Complainant

      Appellant contends that he received ineffective assistance of counsel because

defense counsel did not cross-examine Aldaco. Appellant argues that defense

counsel should have elicited evidence that appellant did not harm Aldaco and fled

upon realizing that Aldaco was HPD. However, this evidence was elicited during

Aldaco’s direct examination. Defense counsel was not ineffective for failing to elicit

evidence that the trial court had already heard.

Community Supervision

      Appellant contends that he received ineffective assistance of counsel because

defense counsel (1) did not prove appellant’s eligibility for community supervision,

but instead (2) told the trial court that this was “not a probation case.” However,

appellant pleaded guilty to aggravated robbery and the judgment included a deadly


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weapon finding. A trial court cannot order community supervision in such cases.

See TEX. CODE CRIM. PROC. art. 42A.054 (a)(10), (b)(1)(A). Because appellant was

not eligible for judge-ordered community supervision, defense counsel was not

ineffective for not proving appellant’s eligibility or for arguing that this “was not a

probation case.”

      Appellant was, however, eligible for deferred adjudication. See TEX. CODE

CRIM. PROC. art. 42A.102. And, the trial court has the discretion to impose deferred

adjudication even without a motion by the defendant. See id. at 42A.101. Even if

we were to find that defense counsel was ineffective for failing to request deferred

adjudication,2 appellant has not shown harm. “To establish prejudice [an appellant]

must demonstrate that, had his trial counsel filed a motion for deferred adjudication,

a reasonable probability exists that the trial court would have granted this motion

and imposed deferred adjudication community supervision instead of [the

punishment assessed].” Young v. State, 425 S.W.3d 469, 477 (Tex. App.—Houston

[1st Dist.] 2012, pet. ref’d) (J. Keyes, concurring).


2
      No evidence in the record demonstrates defense counsel’s trial strategy in choosing
      not to argue for deferred adjudication or that no reasonable attorney would have
      employed such a strategy, thus he has not rebutted the presumption that this decision
      was reasonable, and counsel was effective. See Thompson v. State, 9 S.W.3d 808,
      812 (Tex. Crim. App. 1999). Indeed, given the facts of this case—an aggravated
      robbery of a retired police officer, appellant’s significant criminal history, and
      pending felony charges—a reasonable trial strategy could have been to not ask for
      deferred adjudication, but to request a punishment on the lower end of the applicable
      range of punishment. Indeed, that is the strategy that defense counsel employed,
      asking for a five-year-punishment.
                                            7
      Here, appellant pleaded guilty to the aggravated robbery of an undercover

police officer. He used a deadly weapon during the offense. There was also

evidence that appellant had a significant criminal history of both juvenile and adult

cases. He also had another pending felony charge. Given these facts and the trial

court’s broad discretion in assessing punishment, appellant cannot show that but for

counsel’s failure to request deferred adjudication, he would have received a lesser

punishment. As mentioned earlier, the trial court could have imposed deferred

adjudication community supervision even without a motion from the defendant, but

it chose not to do so. Indeed, the trial court assessed punishment at 25 years’

confinement, well above the five years requested by defense counsel. As such,

appellant cannot show a reasonable probability that, had defense counsel requested

deferred adjudication, the result of the case would have been different. See Lopez,

343 S.W.3d at 142.

Cruel and Unusual Punishment

      Finally, appellant contends he received ineffective assistance because defense

counsel did not object that his 25-year-sentence was cruel and unusual punishment.

Appellant contends that “a twenty-five year sentence is grossly disproportionate to

the crime in light of the fact that [appellant] has no prior felony convictions and has

never been granted adult probation in this or any other state in the United States.”




                                          8
      The Eighth Amendment to the Constitution of the United States provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. CONST. amend. VIII. This provision was made

applicable to the states by the Due Process Clause of the Fourteenth Amendment.

Robinson v. California, 370 U.S. 660, 675 (1962). However, it is well settled in

Texas that, when, as here, a sentence falls within the statutory range of punishment,

it is generally not unconstitutional. State v. Simpson, 488 S.W.3d 318, 323 (Tex.

Crim. App. 2016). However, a very narrow exception to the general rule exists—an

individual’s sentence may be unconstitutional, despite falling within the statutory

range, if it is grossly disproportionate to the offense. Solem v Helm, 463 U.S. 277,

287–90 (1983). Nonetheless, “[o]utside the context of capital punishment,

successful challenges to the proportionality of particular sentences [will be]

exceedingly rare.” Id. at 289–90 (alterations in original) (quoting Rummel v. Estelle,

445 U.S. 263, 272 (1980)).

      “To determine whether a sentence for a term of years is grossly

disproportionate for a particular defendant’s crime, a court must judge the severity

of the sentence in light of the harm caused or threatened to the victim, the culpability

of the offender, and the offender’s prior adjudicated and unadjudicated offenses.”

Simpson, 488 S.W.3d at 323 (citing Graham v. Florida, 560 U.S. 48, 60 (2010)). “In

the rare case in which this threshold comparison leads to an inference of gross


                                           9
disproportionality, the court should then compare the defendant’s sentence with the

sentences received by other offenders in the same jurisdiction and with the sentences

imposed for the same crime in other jurisdictions.” Id. (citing Graham, 560 U.S. at

60, 130 S. Ct. 2011). “If this comparative analysis validates an initial judgment that

the sentence is grossly disproportionate, the sentence is cruel and unusual.” Id.

      Here, appellant’s aggravated-robbery-with-a-deadly-weapon offense had a

punishment range of 5 to 99 years’ imprisonment. See TEX. PENAL CODE § 12.32,

29.03(a)(2). Appellant’s 25-year-sentence is in the low-end of that range. The

charged crime included a deadly weapon finding, and, appellant actually discharged

his weapon during the offense. While appellant points out in his brief that he has no

prior felony convictions or adult probations, the record from the presentence

investigation hearing shows a criminal history dating back to 2011. And, at the time

of this trial, appellant had additional pending charges for aggravated robbery and

child endangerment.

      Considering the evidence in this case, this is not one of those “rare” cases in

which gross disproportionality can be inferred. See Simpson, 488 S.W.3d at 323.

Accordingly, appellant’s sentence, which was within the range of punishment for

the given offense, does not violate the Eighth Amendment. Because appellant’s

sentence was not cruel and unusual, defense counsel was not ineffective for failing

to object that it was.


                                         10
      We overrule issue one.

                                CONCLUSION

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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