Opinion issued October 31, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-18-00812-CR
                            ———————————
                        CHESTER MOSLEY, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Case No. 1554583



                        MEMORANDUM OPINION

      Appellant, Chester Mosley, pleaded guilty to the first-degree felony offense

of injury to a child without an agreed recommendation. At the conclusion of a

presentence investigation (“PSI”) hearing, the trial court found appellant guilty of
the charged offense and sentenced him to twenty-six years’ confinement in the Texas

Department of Criminal Justice. In two points of error, appellant contends that (1)

he received ineffective assistance of counsel during the hearing and (2) he was

subjected to cruel and unusual punishment in violation of the Eighth Amendment to

the United States Constitution because he received a twenty-six year sentence when

he was eligible for probation. We affirm.

                                   Background

      On January 6, 2017, appellant stayed home with the twenty-three month old

son (“the complainant”) of his girlfriend, Erica Hill. At 6:40 p.m., appellant called

Hill and told her that he had given the complainant a bath, and that the complainant

had fallen and scraped his arm while playing. At 9:00 p.m., appellant called Hill

again and told her that the complainant had been scratching his “behind really bad

under his diaper.” Appellant stated that he had observed some “black stuff” under

the complainant’s nails, and that when he removed the complainant’s diaper he saw

what looked like a burn. Appellant sent Hill a picture of the burn. Hill left work

and called 911.

      On April 26, 2018, appellant pleaded guilty to the first-degree felony offense

of injury to a child,1 without an agreed recommendation from the State. At the PSI


1
      TEX. PENAL CODE § 22.04(a) (“A person commits an offense if he intentionally,
      knowingly, recklessly, or with criminal negligence, by act or intentionally,
      knowingly, or recklessly by omission, causes to a child . . . (1) serious bodily
                                          2
hearing, the State called four witnesses and introduced as exhibits the PSI report, the

complainant’s medical records, appellant’s recorded statements, and photographs of

the complainant’s injuries.

      Dr. Todd Huzar, the director of pediatric burn surgery at Children’s Memorial

Hermann Hospital, testified that the complainant was transferred from Texas

Children’s Hospital to Memorial Hermann due to the severity of his burns, where he

remained hospitalized for approximately nineteen days. Dr. Huzar stated that the

complainant suffered second-degree burns to nine percent of his body, including his

buttocks, genitals, thighs, right elbow, and the back of his right leg, and that his burns

were consistent with being submerged in 121 degree Fahrenheit water for thirty to

sixty seconds.     According to Dr. Huzar, the complainant would have cried,

screamed, and tried to get out of the scalding water, and that the complainant would

have sustained burns to his feet if he had been sitting or standing in the bathtub.

      Kathleen Sagmiller, a social worker, spoke with Hill and appellant at the

hospital. Appellant told Sagmiller that the water temperature was “okay” when he

put the complainant in the bathtub. Appellant stated that he was in the adjoining part

of the bathroom while the complainant was in the bathtub, and that there was no

indication that the complainant was in pain. Sagmiller testified that she found



      injury[.]); § 22.04(e) (“An offense under Subsection (a)(1) . . . is a felony of the first
      degree when the conduct is committed intentionally or knowingly.”).
                                              3
appellant’s version of events inconsistent with an accident. After her conversation

with appellant, Sagmiller recommended that the care team consult with child abuse

physicians.

      Dr. Michelle Ruda, a member of the University of Texas McGovern Medical

School’s child protection division, evaluated the complainant. She testified that he

was in pain, vomiting, and not eating. Dr. Ruda also observed bruising on the

complainant’s abdomen and noted that his liver and pancreatic enzymes were quite

elevated. An abdominal CT scan revealed that the complainant had a lacerated liver

and inflamed pancreas.       Dr. Ruda testified that a liver laceration such as

complainant’s typically occurs from a significant blunt force trauma.

      In the course of her evaluation, Dr. Ruda interviewed appellant. Appellant

told Dr. Ruda that he had filled the bathtub about one-third full and tested the water,

which he described as warm but not hot, with his foot. Appellant stated that the

complainant did not appear to be in any discomfort or pain, and that he did not

observe any issues with the complainant’s skin until about forty minutes later when

he noticed that the complainant’s skin on his right elbow was falling off. Dr. Ruda

testified that she found appellant’s explanation to be inconsistent with the

complainant’s injuries.

      The complainant’s foster mother testified that the complainant was placed

with her family after he was released from the hospital.          She stated that the

                                          4
complainant sustained permanent discoloration to the skin on his buttocks, lower

back, right leg, and elbow as a result of his burns. The foster mother testified that

when the complainant was first placed with her, he was very stoic and emotionless,

and that he would stand next to her rather than play with other children. She also

testified that bath time was initially very difficult for the complainant and that he is

still sometimes uncomfortable around men.

      Appellant testified that he stayed home with the complainant while Hill was

at work. When he noticed that the complainant had soiled his diaper, appellant went

to the closet to look for baby wipes. Appellant testified that, as he turned to leave

the closet, he tripped over the complainant and accidentally stepped on him. He then

put the complainant in the bathtub and left the room. Appellant testified that he let

the water run in the bathtub while he brushed his hair and texted a girl on his phone

whom he planned to meet later with his friend. As he looked for clothes, appellant

heard the complainant moaning and “knew he was troubled.” Appellant returned to

the bathroom and noticed that the complainant, who was sitting in the bathtub, was

“red all over” and took him out of the bathtub. Appellant testified that he realized

that he had “messed up” but did not want Hill to find out. When appellant began

dressing the complainant, he noticed that the skin on the complainant’s arm had

come off and called Hill. Later that evening, appellant noticed the complainant




                                           5
scratching his bottom. When appellant took off the complainant’s diaper, he saw

that his skin had come off. Appellant called Hill again and Hill called 911.

      Appellant testified that, when he was sixteen years old, he was charged with

capital murder but that the charge was later dropped to aggravated robbery and he

was sentenced to ten years’ juvenile supervision. During his juvenile detention,

appellant was written up twenty-two times for infractions, including verbal and

physical altercations. Between 2013 and 2016, appellant served jail time for six

misdemeanor offenses, including evading arrest, failure to identify as a fugitive,

possession of marijuana, burglary of a motor vehicle, and failure to stop and give

information after hitting someone with his car.

      At the conclusion of the PSI hearing, the trial court sentenced appellant to

twenty-six years’ confinement. This timely appeal followed.

                         Ineffective Assistance of Counsel

      In his first point of error, appellant contends that he received ineffective

assistance of counsel during the PSI hearing because his trial counsel failed to (1)

adequately prepare him to testify at trial, (2) prove his eligibility for probation, and

(3) object to his twenty-six year sentence as cruel and unusual punishment.

   A. Standard of Review and Applicable Law

      The standard of review for evaluating claims of ineffective assistance of

counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687 (1984). Under

                                           6
the Strickland two-step analysis, a defendant must demonstrate that (1) his 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. Id. at 687–88, 694; Andrews v. State, 159

S.W.3d 98, 101–02 (Tex. Crim. App. 2005). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694. Failure to make the required showing of either deficient performance

or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.

      An “[a]ppellant bears the burden of proving by a preponderance of the

evidence that his counsel was ineffective.” Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). “Any allegation of ineffectiveness must be firmly founded

in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Id. at 814. However, a reviewing court will rarely be able to fairly

evaluate the merits of an ineffective assistance claim on direct appeal because the

trial record is usually undeveloped and inadequate to reflect the motives behind trial

counsel’s actions. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005). In fact, trial counsel should have the opportunity to explain his or her actions

before being found ineffective. See Rylander v. State, 101 S.W.3d 107, 111 (Tex.




                                          7
Crim. App. 2003). When the record is silent, we may not speculate to find trial

counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

      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 is within a wide range of reasonable

professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. We will find a

counsel’s performance deficient only if the conduct is so outrageous that no

competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. “When

handed the task of determining the validity of a defendant’s claim of ineffective

assistance of counsel, any judicial review must be highly deferential to trial counsel

and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813 (citing

Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).

   B. Failure to Prepare Appellant to Testify

      Appellant contends that his trial counsel was ineffective for failing to

adequately prepare him to testify. Specifically, appellant complains that his trial

counsel elicited testimony from him about how important he was, and that he stepped

on the complainant, was on the phone with a “little chick” even though the

complainant’s mother was his girlfriend, and he had suffered from the incident.

Appellant argues that trial counsel should have told him not to include unnecessary

                                          8
and prejudicial information about his social life, avoid appearing arrogant, and

respond with short answers rather than allowing him to ramble.

      In support of his argument that trial counsel failed to adequately prepare him

to testify, appellant directs this Court to Ex parte Guzmon and Pererro v. State. In

Guzmon, a habeas proceeding, the Court of Criminal Appeals found defense

counsel’s performance deficient where counsel testified at the writ hearing that he

merely subpoenaed the punishment witnesses suggested by the applicant and met

them immediately before the punishment stage began. 730 S.W.2d 724, 734 (Tex.

Crim. App. 1987) (“This was insufficient preparation.”).             In Perrerro, the

defendant’s trial counsel testified at the hearing on the motion for new trial that he

was negligent when he failed to sufficiently prepare the defendant to testify so as to

avoid opening the door to his criminal history, an omission supported by the

defendant’s testimony at the hearing. 990 S.W.2d 896, 899 (Tex. App.—El Paso

1999, pet. ref’d).

      Appellant’s reliance on Guzmon and Perrerro is unavailing. In contrast to

those cases, the record here is silent regarding trial counsel’s preparation of appellant

for the PSI hearing. Appellant did not file a motion for new trial raising an

ineffective assistance claim, obtain an affidavit from trial counsel, or request a

post-conviction hearing. Based on this silent record, appellant has failed to meet his

burden to prove that his counsel’s performance was deficient. See Toledo v. State,

                                           9
519 S.W.3d 273, 289 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (concluding

that defendant’s claim that trial counsel failed to adequately prepare him to testify at

PSI hearing lacked merit where record was silent regarding counsel’s preparation);

Darkins v. State, 430 S.W.3d 559, 571 (Tex. App.—Houston [14th Dist.] 2014, pet.

ref’d) (finding that defendant’s ineffective assistance claim that trial counsel failed

to adequately prepare him to testify in his own defense lacked merit where record

did not reflect counsel’s strategy for appellant’s testimony or defendant’s

preparation for trial).

   C. Failure to Prove Probation Eligibility

       Appellant argues that his trial counsel was ineffective because she did not

present evidence at the hearing showing that he was eligible for probation.

       “A defendant is eligible for community supervision . . . if: (1) before the trial

begins, the defendant files a written sworn motion with the judge that the defendant

has not previously been convicted of a felony in this or any other state; and (2) the

jury enters in the verdict a finding that the information contained in the defendant’s

motion is true.” TEX. CODE CRIM. PROC. art. 42A.055(b). To be eligible for

jury-recommended probation, a defendant bears the burden of pleading and proving

that he has no prior felony convictions. Speth v. State, 6 S.W.3d 530, 533 (Tex.

Crim. App. 1999).




                                          10
      In support of his argument, appellant relies on San Roman v. State, 681

S.W.2d 872 (Tex. App.—El Paso 1984, writ ref’d). There, the court of appeals held

that trial counsel rendered ineffective assistance by failing to introduce any evidence

demonstrating the defendant’s eligibility for probation. See id. at 875. San Roman,

however, is distinguishable from the case before us. Here, appellant elected to have

the trial judge, not a jury, assess his sentence. A defendant who is sentenced by the

trial judge may be eligible for community supervision even if he has been convicted

of a felony.    See TEX. CODE CRIM. PROC. art. 42A.053, 42A.054 (discussing

judge-ordered community supervision). Because appellant did not have to prove

that he had not been previously convicted of a felony to be eligible for probation, his

trial counsel was not ineffective for failing to offer such proof. See id. art. 42A.053;

see also Norris v. State, No. 01-15-00484-CR, 2016 WL 635122, at *2 (Tex. App.—

Houston [1st Dist.] Feb. 11, 2016, no pet.) (mem. op., not designated for publication)

(concluding that defendant’s counsel was not ineffective for failing to offer proof of

defendant’s eligibility for probation where trial judge, not jury, assessed defendant’s

punishment).

   D. Failure to Object to Sentence as Cruel and Unusual Punishment

      Appellant argues that his trial counsel rendered ineffective assistance when

she failed to object to appellant’s twenty-six year sentence as cruel and unusual

punishment in violation of the Eight Amendment.

                                          11
      To establish ineffective assistance for failing to object, appellant must show

that, if his counsel had objected, the trial court would have erred in overruling the

objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (per

curiam); Jacoby v. State, 227 S.W.3d 128, 131 (Tex. App.—Houston [1st Dist.]

2006, pet. ref’d). The Eighth Amendment forbids “extreme sentences that are

‘grossly disproportionate’ to the crime.” State v. Simpson, 488 S.W.3d 318, 322

(Tex. Crim. App. 2016) (citing Ewing v. California, 538 U.S. 11, 23 (2003) (plurality

op.)). Punishment assessed within the statutory limits is generally not cruel and

unusual punishment. Jacoby, 227 S.W.3d at 131. However, a punishment must be

in proportion to the crime even if assessed within the statutory range. Solem v. Helm,

463 U.S. 277, 290 (1983); Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d).

      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.

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

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

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

                                          12
imposed for the same crime in other jurisdictions. Solem, 463 U.S. at 290. If this

comparative analysis validates an initial judgment that the sentence is grossly

disproportionate, the sentence is cruel and unusual. Graham, 560 U.S. at 60;

Simpson, 488 S.W.3d at 323.

      Serious bodily injury to a child is a first-degree felony for which the range of

punishment is “imprisonment . . . for life or for any term of not more than 99 years

or less than five years.” See TEX. PENAL CODE §§ 12.32, 22.04(a), (e). Appellant’s

sentence of twenty-six years is within the statutory range and at the lower end of the

punishment range. Appellant contends that his sentence is grossly disproportionate

to the crime because he has no prior felony convictions, he was eligible for

probation, and he has never been granted adult probation. However, the mere

possibility of probation or deferred adjudication community supervision does not

render a sentence of incarceration cruel and unusual. See Combs v. State, 652

S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1983, no pet.) (holding

punishment, which was within statutory limits, was not cruel and unusual even

though defendant was eligible for probation and had never been convicted of any

felony); Cadieux v. State, 711 S.W.2d 92, 95 (Tex. App.—Austin 1986, pet. ref’d)

(concluding no basis from departing from general rule that punishment assessed

within statutory limits is not cruel and unusual even though defendant was high

school graduate, had honorable military record, and was eligible for probation).

                                         13
      With regard to the severity of appellant’s sentence in light of the harm caused

to the complainant, the evidence showed that the complainant suffered painful

second-decree burns to nine percent of his body, including his genitals, buttocks,

legs, and elbow, and that he sustained permanent skin discoloration as a result of his

burns. Although appellant testified that the complainant was sitting in the water and

only softly moaning, the trial court heard evidence that the complainant’s burns were

consistent with being submerged in 121 degree Fahrenheit water for thirty to sixty

seconds, that the complainant would have cried, screamed, and tried to get out of the

scalding water, and that the complainant did not sustain any burns to his feet which

he would have had he been sitting or standing in the bathtub. Although appellant

testified that he accidentally stepped on the complainant, the trial court also heard

testimony that the laceration to the complainant’s liver required significant force,

such as that sustained in high-velocity injuries. In addition to the physical trauma

and scars, the foster mother testified that the complainant has suffered emotional and

psychological trauma as a result of this incident. As to culpability, appellant pleaded

guilty to the charged offense.

      Finally, appellant’s criminal history, including his charge for aggravated

robbery (reduced from capital murder) when he was sixteen years old, twenty-two

disciplinary write-ups while in juvenile detention, and subsequent misdemeanor

offenses for evading arrest, failure to identify as a fugitive, possession of marijuana,

                                          14
burglary of a motor vehicle, and failure to stop and give information after he hit

someone with his car, also support a finding that appellant’s sentence is not grossly

disproportionate to the crime he committed. See generally Simpson, 488 S.W.3d at

323 (stating courts consider offender’s prior adjudicated and unadjudicated offenses

when determining whether sentence is grossly disproportionate). In light of these

facts, we cannot say that appellant’s twenty-six year sentence is grossly

disproportionate.2   Thus, we conclude that appellant’s trial counsel was not

ineffective because, even if she had made an objection to appellant’s sentence as

grossly disproportionate to the convicted offense, the judge would not have erred in

overruling the objection. See Jagaroo v. State, 180 S.W.3d 793, 801 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d); Vaughn v. State, 888 S.W.2d 62, 74 (Tex.

App.—Houston [1st Dist.] 1995), aff’d, 931 S.W.2d 564 (Tex. Crim. App. 1996).

      Because appellant has not satisfied the first prong of Strickland for any of the

three complaints about his trial counsel’s performance, appellant has failed to satisfy

his burden to show ineffective assistance of counsel. See Williams, 301 S.W.3d at

687. Accordingly, we overrule appellant’s first point of error.




2
      Because we have found no gross disproportionality, we do not need to perform the
      comparative analysis set forth in Solem. See State v. Simpson, 488 S.W.3d 318, 323
      (Tex Crim. App. 2016).
                                          15
                          Cruel and Unusual Punishment

      In his second point of error, appellant contends that his sentence constitutes

cruel and unusual punishment in violation of the Eighth Amendment because the

trial court sentenced him to twenty-six years’ confinement even though he was

eligible for probation.

      To preserve a complaint that a sentence constitutes cruel and unusual

punishment, a defendant must make a timely request, objection, or motion and

receive an adverse ruling. See TEX. R. APP. P. 33.1(a); Curry v. State, 910 S.W.2d

490, 497–98 (Tex. Crim. App. 1995). Appellant neither objected at sentencing nor

raised the issue in a motion for new trial. The Court of Criminal Appeals has held

that defendants may not assert an Eighth Amendment claim for the first time on

appeal. See e.g., Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (citing

with approval Russell v. State, 341 S.W.3d 526 (Tex. App.—Fort Worth 2011, no

pet.), which held that defendant did not preserve Eighth Amendment complaint not

raised at sentencing); Lucero v. State, 246 S.W.3d 86, 98 (Tex. Crim. App. 2008)

(holding that defendant did not raise Eighth Amendment claim in trial court and

therefore did not preserve it for appellate review).

      Appellant concedes that the failure to raise an objection on Eighth

Amendment grounds waives any such complaint on appeal. Citing Rule of Evidence

103, he nevertheless asserts that “nothing in the rules precludes taking notice of

                                          16
fundamental errors affecting substantial rights although they were not brought to the

attention of the courts.” See TEX. R. EVID. 103(e) (“In criminal cases, a court may

take notice of a fundamental error affecting a substantial right, even if the claim of

error was not properly preserved.”) Appellant presents no argument or citation to

authority in support of the proposition that the trial court’s sentence amounts to

fundamental error. Therefore, he has waived this argument. See TEX. R. APP. P.

38.1(i). Even absent waiver, we conclude that no such error occurred in this case.

As previously discussed, appellant was convicted of a first-degree felony and

sentenced at the lower end of the statutory range of punishments authorized by the

Legislature for such offenses. See TEX. PENAL CODE § 12.32(a). Punishment

assessed within the statutory limits is generally not cruel and unusual punishment.

Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Young v. State, 425

S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). And, for the

reasons discussed above, appellant’s punishment is not grossly disproportionate to

the crime committed. Accordingly, we overrule appellant’s second point of error.

                                    Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

                                         17
Panel consists of Justices Lloyd, Goodman, and Landau.

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




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