Affirmed and Memorandum Opinion filed April 14, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00469-CR

                 ARREINIUS JARLYN WATSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1198355

                 MEMORANDUM                     OPINION
      Appellant Arreinius Jarlyn Watson appeals his conviction for aggravated
robbery of an elderly or disabled individual. See Tex. Penal Code Ann. §
29.03(a)(3) (West 2011). Appellant contends (1) he received ineffective assistance
of counsel; and (2) the punishment assessed violated the Eighth Amendment
prohibition against cruel and unusual punishment. We affirm.
                                       BACKGROUND

       Appellant pleaded guilty to aggravated robbery of an elderly individual
without an agreed recommendation as to punishment. The trial court deferred
adjudication of guilt and, on July 23, 2009, placed appellant on deferred
adjudication community supervision for a period of five years. On November 3,
2010, the State filed a motion to adjudicate guilt asserting that appellant violated
certain conditions of his community supervision. On February 14, 2011, the State
filed a motion to dismiss on the grounds that appellant was to serve 100 days in the
Harris County Jail and remain on community supervision after release.

       On June 29, 2012, the State filed a second motion to adjudicate guilt. That
motion was amended three times; the third amended motion was filed January 13,
2014. On April 16, 2014, appellant entered a plea of true to the State’s third
amended motion. Appellant signed a stipulation of evidence in which he stipulated
that he had been served with a copy of the State’s motion, consented to the
introduction of evidence, and waived his right against self-incrimination. Appellant
judicially confessed to the offense, expressed that he understood the range of
punishment was five to 99 years or life, and up to a $10,000 fine, entered a plea of
true to the State’s motion, and waived any further time to prepare for trial.1 The
trial court subsequently assessed appellant’s sentence at confinement for twenty
years in the Institutional Division of the Texas Department of Criminal Justice.

                   INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM

       In his first issue appellant contends he received ineffective assistance of
counsel because counsel failed to request a court reporter to record appellant’s plea

       1
         Appellant also agreed to waive any right to appeal. Appellant’s waiver of the right to
appeal is not effective because there was no agreed recommendation as to punishment. See
Washington v. State, 363 S.W.3d 589, 589–90 (Tex. Crim. App. 2012).

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and failed to object to the twenty-year sentence as cruel and unusual.

      To prevail on an ineffective-assistance claim, 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 the error, the result of the
proceeding would have been different. Wiggins v. Smith, 539 U.S. 510, 521 (2003);
Garza v. State, 213 S.W.3d 338, 347–48 (Tex. Crim. App. 2007). Appellate review
of trial counsel’s representation is highly deferential and presumes that counsel’s
actions fell within the wide range of reasonable and professional assistance. Garza,
213 S.W.3d at 348.

      If the reasons for counsel’s conduct at trial do not appear in the record and it
is at least possible that the conduct could have been grounded in legitimate trial
strategy, we will defer to counsel’s decisions and deny relief on an ineffective-
assistance claim on direct appeal. Id. To warrant reversal where trial counsel has
not been afforded an opportunity to explain those reasons, the challenged conduct
must be so outrageous that no competent attorney would have engaged in it.
Roberts v. State, 220 S.W.3d 521, 533–34 (Tex. Crim. App. 2007), cert. denied, —
U.S. —, 128 S.Ct. 282, 169 L.Ed.2d 206 (2007). A vague, inarticulate sense that
counsel could have provided a better defense is not a legal basis for finding
counsel constitutionally deficient. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.
App. 2002).

      In this case, appellant argues that he received ineffective assistance because
his counsel did not request a court reporter to record his plea of true to the State’s
motion to adjudicate guilt. Without showing harm, the failure to request
recordation of a plea hearing is not per se ineffective assistance of counsel. Rivera
v. State, 981 S.W.2d 336, 339 (Tex. App.—Houston [14th Dist.] 1998, no pet.); see
also Oliva v. State, 942 S.W.2d 727, 733 (Tex. App.—Houston [14th Dist.] 1997),

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pet. dism’d as improvidently granted, 991 S.W.2d 803 (Tex. Crim. App. 1998)
(declining to adopt a rule that failure to request a record amounts to ineffective
assistance as a matter of law). Appellant did not make this complaint in his motion
for new trial, nor has he filed a habeas corpus petition.

       The record is silent as to the reasoning and strategy behind counsel’s action
or inaction; accordingly, appellant has not rebutted the strong presumption that
counsel exercised reasonable professional judgment. See Thompson, 9 S.W.3d at
814. Appellant did not develop a record with regard to why counsel did not request
a court reporter to transcribe the plea hearing, or whether counsel objected to
appellant’s sentence as cruel and unusual. Whatever trial counsel’s reasons for
pursuing the chosen course, in the absence of a record identifying these reasons,
we must presume they were made deliberately as part of sound trial strategy.
Because we are unable to conclude that trial counsel’s performance fell below an
objective standard without evidence in the record, we conclude that appellant has
failed to meet the first prong of the Strickland test as to this complaint. See id.
Moreover, as discussed below, appellant has failed to show an objection to his
punishment as cruel and unusual would have been successful. We overrule
appellant’s first issue.

                     CRUEL-AND-UNUSUAL-PUNISHMENT CLAIM

       In his second issue appellant contends he received cruel and unusual
punishment where the record reflects that he received a twenty-year sentence for
violating his probation.

       Appellant recognizes that the failure to raise an objection to his punishment
at trial fails to preserve error. See Tex R. App. P. 33.1; see also Mercado v. State,
718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Noland v. State, 264 S.W.3d 144,
151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that when
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appellant failed to object to his sentence at the punishment hearing or to complain
about it in his motion for new trial, he failed to preserve his Eighth Amendment
complaint that the punishment assessed was “grossly disproportionate and
oppressive”).

      In this case, no record was made of the plea hearing or sentencing hearing;
therefore, we do not have a record to determine whether appellant objected to his
sentence. A contemporaneous objection, however, is not the only method available
to appellant to preserve error on a cruel-and-unusual-punishment complaint. See
Battle v. State, 348 S.W.3d 29, 31 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(holding that appellant failed to preserve error that sentence was cruel or unusual
by failing to raise the issue at trial or in a motion for new trial). The record reflects
that appellant failed to raise his claim of cruel and unusual punishment in a post-
judgment motion. Because appellant did not present a specific objection to his
sentence or otherwise obtain an adverse ruling on the complaint he now voices on
appeal, appellant presents nothing for this court’s review. Tex. R. App. P. 33.1.

      In arguing that his sentence constituted cruel and unusual punishment,
appellant argues that “nothing in the rules precludes taking notice of fundamental
errors affecting substantial rights although they were not brought to the attention of
the trial court.” In Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App.
1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim.
App. 1997), the Court of Criminal Appeals of Texas determined that the general
preservation requirement does not apply to all claims. The high court separated the
rights of the defendant into three categories:

            The first category of rights are those that are “widely
             considered so fundamental to the proper functioning of our
             adjudicatory process . . . that they cannot be forfeited . . . by
             inaction alone.” These are considered “absolute rights.”

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            The second category of rights is comprised of rights that are
             “not forfeitable”—they cannot be surrendered by mere
             inaction, but are “waivable” if the waiver is affirmatively,
             plainly, freely, and intelligently made. The trial judge has an
             independent duty to implement these rights absent any request
             unless there is an effective express waiver.
            Finally, the third category of rights are “forfeitable” and must
             be requested by the litigant. Many rights of the criminal
             defendant, including some constitutional rights, are in this
             category and can be forfeited by inaction.

Marin, 851 S.W.2d at 279–80.

       Rule 33.1’s preservation requirements do not apply to rights falling within
the first two categories. Id. In Garza v. State, the Court of Criminal Appeals
determined that a juvenile does not waive a complaint that mandatory punishment
of life in prison without the possibility of parole violated the Eighth Amendment
by failing to voice that complaint in the trial court. See 435 S.W.3d 258, 261 (Tex.
Crim. App. 2014). The Court of Criminal Appeals noted that Eighth Amendment
issues generally are forfeited if not raised in the trial court. See id. at 259. But, the
high court created an exception to the preservation-of-error requirement for
“substantive status-based or individualized-sentencing claims under the Eighth
Amendment . . . embraced by Miller.”2 See id. at 262. Appellant does not assert a
substantive status-based or individual-sentencing claim embraced by Miller.
Rather, appellant urges that he was disproportionately sentenced for violating the
conditions of community supervision. Accordingly, we reject appellant’s
contention that this complaint constituted a complaint of fundamental error. See
Cerna v. State, 441 S.W.3d 860, 867–68 (Tex. App.—Houston [14th Dist.] 2014,


       2
        Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2464 (2012) (holding that imposing a
mandatory sentence of life without the possibility of parole on individuals who commit capital
murder before the age of eighteen violates the Eighth Amendment).

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pet. ref’d) (rejecting complaint based on failure to preserve error in the trial court
when appellant sought extension of Miller).

      Waiver notwithstanding, appellant has not shown that his sentence was cruel
and unusual or grossly disproportionate to the offense for which he was convicted.
Although a sentence may be within the range permitted by statute, it may
nonetheless run afoul of the Eighth Amendment prohibition against cruel and usual
punishment. Solem v. Helm, 463 U.S. 277, 290 (1983). A sentence is grossly
disproportionate to a crime only when an objective comparison of the gravity of
the offense against the severity of the sentence reveals the sentence to be extreme.
Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d); Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d). In its proportionality analysis, a reviewing court must first review
whether the sentence is grossly disproportionate to the offense. Hicks, 15 S.W.3d
at 632. If the reviewing court determines the sentence to be grossly
disproportionate to the crime committed, then it compares (1) sentences for similar
crimes in the jurisdiction and (2) sentences for the same crime in other
jurisdictions. Id. The constitutional principal of the Eighth Amendment is
tempered, however, by the corollary proposition that the determination of prison
sentences is a legislative prerogative that is primarily within the province of the
legislatures, not the courts. Rummel v. Estelle, 445 U.S. 263, 274–76 (1980).

      Appellant argues he was disproportionately sentenced for violating the
conditions of community supervision, and the trial court unfairly sentenced him to
twenty years’ confinement because the “new law violation” that occurred while
appellant was on community supervision was evading arrest with a motor vehicle.
However, the trial court did not sentence appellant to twenty years’ confinement
for failing to comply with the conditions of community supervision; the trial court

                                          7
sentenced appellant for aggravated robbery of an elderly individual, a first-degree
felony. See Tex. Penal Code Ann. §§ 12.32 & 29.03. The punishment range for a
first-degree felony is confinement for five to 99 years or life, and a fine not to
exceed $10,000. When appellant entered his plea of true he acknowledged the
possible range of punishment.

      We first determine whether “an objective comparison of the gravity of the
offense against the severity of the sentence reveals the sentence to be extreme.”
Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref’d) (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J.,
plurality op.)). Only if we are able to infer that the sentence is grossly
disproportionate will we then compare the challenged sentence against the
sentences of other offenders in the same jurisdiction and the sentences imposed for
the same crime in other jurisdictions. Baldridge, 77 S.W.3d at 893; see also Solem,
463 U.S. at 292.

      Appellant has failed to show that his twenty-year sentence is grossly
disproportionate to the first-degree felony offense of aggravated robbery of an
elderly individual. The legislature has imposed a five-to-99-year range of
punishment for the offense, and a twenty-year sentence, near the low end of the
sentencing range, is not grossly disproportionate to the offense in this case. See
Diamond v. State, 419 S.W.3d 435, 440–41 (Tex. App.—Beaumont 2012, no pet.)
(ninety-nine-year sentence for aggravated robbery not disproportionate); Jacoby v.
State, 227 S.W.3d 128, 132 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)
(concurrent 40-year sentences for two counts of aggravated robbery with a deadly
weapon were not grossly disproportionate). Because appellant has not shown that
his twenty-year sentence is grossly disproportionate to the offense, we need not
consider the remaining Solem factors. See Harris v. State, 204 S.W.3d 19, 29 (Tex.

                                        8
App.—Houston [14th Dist.] 2006, pet. ref’d).We overrule appellant’s second issue.

      We affirm the trial court’s judgment.




                                      /s/       William J. Boyce
                                                Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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