Opinion filed February 21, 2019




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-17-00185-CR
                                      __________

                    KEITH ELLIOT WOOD, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 104th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 20161B


                     MEMORANDUM OPINION
      Keith Elliot Wood entered an open plea of guilty to the state jail felony offense
of possession of methamphetamine.          The trial court ordered a presentence
investigation. After the disposition hearing, the trial court assessed Appellant’s
punishment at confinement in a state jail facility for two years, and it sentenced
Appellant accordingly.
       In his sole issue on appeal, Appellant contends that he was denied effective
assistance of counsel at his disposition hearing because his counsel failed to object
to the allegedly cruel and unusual sentence assessed by the trial court. We affirm.
       At the disposition hearing, the State relied on the presentence investigation
report and presented no testimony. But Appellant did testify. He testified as to his
“significant criminal history,” and he attributed that history to his methamphetamine
addiction. Appellant had previously been on deferred adjudication in connection
with a burglary-of-a-habitation charge.            While Appellant was on deferred
adjudication, the State charged him with misdemeanor theft.                The trial court
adjudicated Appellant’s guilt and placed him on “regular” community supervision.
Later, the State charged Appellant with yet another misdemeanor theft. The trial
court then sent Appellant to a restitution center. When told to report to a community
correction facility for drug treatment in San Angelo, Appellant did not. As to this
instance, the prosecutor asked Appellant, “And that’s when we had the third MTR
and that’s when we sent you down?” Appellant answered, “Right.”
       During his testimony, Appellant acknowledged his many failures to comply
with the terms and conditions of his community supervision. Appellant recognized
that his continued sobriety would require more than a 30-day inpatient program and
that he would have to do more.
       Appellant went on to say that, in addition to attendance at weekly group
meetings, he was “tired of that lifestyle. It’s -- it’s a no-win situation on that lifestyle,
and it’s time for me to live life, and I like life better sober, and that’s why I continue
to stay sober.” Appellant stated that he had not used since April 15, 2016, and that
he could pass a drug test if one was ordered. Whereupon, the trial court declared a
recess and ordered the drug test. The test results were positive for methamphetamine
and amphetamine. Appellant confessed that he had last used three days prior to the


                                             2
hearing; he blamed his relapse on the stress from his “terrified” anticipation of the
hearing. Appellant admitted that life is full of stresses and that he had told his
attorney he could pass a drug test that morning. Appellant agreed that he continued
to use “even though [his] liberty [was] at stake.” At the hearing, the State informed
the trial court that Appellant had been arrested for another state jail felony theft after
the presentence investigation had been finished.
      After testimony and arguments concluded, the trial court reviewed the
presentence investigation report and assessed Appellant’s punishment at
confinement for two years in a state jail facility. Appellant’s trial counsel did not
object to the sentence imposed.
      In his sole issue, Appellant alleges that he received ineffective assistance of
counsel because his attorney failed to object to his two-year sentence as cruel and
unusual. The standard of review for Appellant’s complaint of ineffective assistance
of counsel is whether counsel’s conduct “so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).
      We review a claim of ineffective assistance of counsel under the Strickland
standard, which involves a two-part analysis that includes a performance prong and
a prejudice prong. Id. at 687. For the performance prong, Appellant must show that
trial counsel’s performance was deficient. Id. For the prejudice prong, Appellant
must show that there is a reasonable probability that the outcome would have been
different but for trial counsel’s errors. See Wiggins v. Smith, 539 U.S. 510, 534
(2003); Strickland, 466 U.S. at 694. A failure to prove each prong of the Strickland
test defeats a claim of ineffective assistance of counsel. Perez v. State, 310 S.W.3d
890, 893 (Tex. Crim. App. 2010).




                                            3
      Appellate review of defense counsel’s performance is highly deferential, and
we presume that trial counsel’s actions fell within the wide range of reasonable and
professional assistance. Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002); Walker v. State, 406 S.W.3d 590, 594 (Tex. App.—
Eastland 2013, pet. ref’d). To overcome this presumption, Appellant’s claim of
ineffective assistance must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d
808, 814 (Tex. Crim. App. 1999). In most cases, a silent record that does not explain
counsel’s actions will not overcome the strong presumption of reasonable assistance.
Id. at 813–14.     Appellant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hayden v. State, 155
S.W.3d 640, 648 (Tex. App.—Eastland 2005, pet. ref’d). If trial counsel has not had
an opportunity to explain the challenged actions, then we will not conclude that those
actions constituted deficient performance unless they were so outrageous that no
competent attorney would have engaged in them. See Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Rylander v. State, 101 S.W.3d
107, 111 (Tex. Crim. App. 2003).
      We note that Appellant did not file a motion for new trial. Consequently, the
appellate record does not contain an explanation from trial counsel concerning his
actions. Because trial counsel has had no opportunity to explain his reasoning for
his actions or lack thereof, we must assume that he had a strategic motivation for his
conduct if any such motivation can be imagined. Ex parte Varelas, 45 S.W.3d 627,
632 (Tex. Crim. App. 2001).
      To prevail on an ineffective assistance claim for failure to make an objection,
an appellant must show that the trial court would have erred if it had overruled the


                                          4
objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). Appellant
cannot meet this burden.        Trial counsel is not ineffective for failing to
make futile objections. Wood v. State, 4 S.W.3d 85, 91 (Tex. App.—Fort Worth
1999, pet. ref’d). Here, trial counsel was not ineffective for failing to object that
Appellant’s punishment constituted cruel and unusual punishment.
      When a sentence falls within the statutory range of punishment, it is generally
not “excessive, cruel, or unusual.” State v. Simpson, 488 S.W.3d 318, 323 (Tex.
Crim. App. 2016). The statutory range of punishment for a state jail felony is
confinement in a state jail facility for not more than two years or less than 180
days. TEX. PENAL CODE ANN. § 12.35(a) (West Supp. 2018). Thus, Appellant’s
sentence fell within the statutory range.
      An individual’s sentence that is within the statutory range may constitute cruel
and unusual punishment if it is grossly disproportionate to the offense. Solem v.
Helm, 463 U.S. 277, 287 (1983). However, “a great deal of discretion is allowed the
sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
      Here, the trial court assessed Appellant’s punishment at confinement for two
years. At the hearing, Appellant admitted that he had a demonstrated history of
criminal offenses and probation revocations. Appellant also lied to the trial court
about Appellant’s ability to pass a drug test. Appellant also had other criminal
charges that the State chose not to file against him. Moreover, Appellant was
arrested for state jail felony theft after the presentence investigation was complete—
just ten days before the disposition hearing. Appellant further admitted that he
continued to use drugs even though his liberty depended on his sobriety.
      We have reviewed the record and found nothing to indicate that Appellant’s
sentence was grossly disproportionate to his offense. The sentence was appropriate
given Appellant’s history and testimony. Appellant has not shown that the trial court


                                            5
would have erred if it had overruled an objection to Appellant’s sentence. See Wood,
4 S.W.3d at 91. Thus, Appellant has not shown that his counsel rendered ineffective
assistance. We overrule Appellant’s sole issue on appeal.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


February 21, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

                                                      6
