Opinion filed May 16, 2013




                                     In The


        Eleventh Court of Appeals
                                 __________

                             No. 11-12-00048-CR
                                 __________

                         JAIME TELLEZ, Appellant

                                       V.

                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 142nd District Court
                             Midland County, Texas
                         Trial Court Cause No. CR39128


                     MEMORANDUM OPINION
      Appellant, Jaime Tellez, pleaded guilty before the jury to two counts of
sexual assault of a child and one count of indecency with a child. The jury found
Appellant guilty of each count, assessed punishment for each sexual assault
conviction at confinement for twelve years and a $10,000 fine, and assessed
punishment for the indecency-with-a-child conviction at confinement for eleven
years and a $10,000 fine.       The trial court ordered the sentences to run
consecutively. We affirm.
      Appellant presents two issues for review.      In his first issue, Appellant
contends that he was denied effective assistance of counsel at trial because trial
counsel failed to call any witnesses or present any mitigating evidence at the
punishment phase of trial.    In the second issue, Appellant contends that his
sentence, which totals thirty-five years after being stacked, constitutes cruel and
unusual punishment.
      In order to determine whether Appellant’s trial counsel rendered ineffective
assistance at trial, we must first determine whether Appellant has shown that
counsel’s representation fell below an objective standard of reasonableness and, if
so, then determine whether there is a reasonable probability that the result would
have been different but for counsel’s errors. Strickland v. Washington, 466 U.S.
668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999);
Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In order to assess
counsel’s performance, we must make every effort to eliminate the distorting
effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct
from counsel’s perspective at the time. We must indulge a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and Appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Stafford v. State, 813
S.W.2d 503, 508–09 (Tex. Crim. App. 1991).         To defeat the presumption of
reasonable professional assistance, the record must affirmatively demonstrate the
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App.
1999). Rarely will the record on direct appeal contain sufficient information to
permit a reviewing court to fairly evaluate the merits of an ineffective assistance
claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
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      The appellate record in the present case does not contain sufficient
information to affirmatively demonstrate trial counsel’s ineffectiveness. Although
Appellant filed a motion for new trial, the effectiveness of his counsel was not
addressed in that motion.     Nothing in the record before us shows that the
effectiveness of trial counsel was addressed prior to the filing of the brief on
appeal. Appellant has not shown what witnesses he thinks should have been called
to testify on his behalf or what mitigating evidence he thinks should have been
presented by trial counsel. Nor has Appellant shown that any such witnesses were
available, that their testimony would have been beneficial to Appellant, or that any
mitigating evidence even exists. Furthermore, nothing in the record before us
indicates what trial counsel did or what he failed to do with respect to his
investigation of any mitigating evidence. Cf. Wiggins v. Smith, 539 U.S. 510
(2003) (holding counsel in capital punishment case ineffective based on failure to
conduct more thorough investigation into mitigating evidence where record before
the Court—from a postconviction proceeding—included mitigating evidence and
counsel’s testimony).
      The record does show that trial counsel discussed the State’s plea offer with
Appellant, which Appellant rejected. Trial counsel filed an application for
probation and a request for sentencing by a jury.       Furthermore, trial counsel
conducted voir dire; cross-examined the detective who had interviewed Appellant;
presented the jury with stipulated evidence showing that Appellant had not
previously been convicted of a felony and was eligible for probation; made a
closing argument that addressed the strict requirements of probation, which
“requires more of somebody than just sitting in a jail cell”; and argued against the
State’s motion to cumulate the sentences. Appellant chose not to testify.
      Based on the record before us, we cannot say that trial counsel’s
performance fell below an objective standard of reasonableness. The record before
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us does not contain sufficient information to affirmatively demonstrate trial
counsel’s ineffectiveness. See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at
813–14. Appellant’s first issue is overruled.
      In his second issue, Appellant contends that the trial court’s “imposition of a
35-year sentence for sexual assault of a child constitutes cruel and unusual
punishment.” The record shows that Appellant received sentences of twelve years,
twelve years, and eleven years in the three counts for which he was convicted and
that the trial court ordered the sentences to run consecutively. The cumulation of
Appellant’s sentences was authorized by TEX. PENAL CODE ANN. § 3.03(b)(2)
(West Supp. 2012).
      Appellant has not preserved his contention for appeal.          To preserve a
complaint for appellate review, the party must have presented to the trial court a
timely request, objection, or motion stating the specific grounds for the ruling
desired. TEX. R. APP. P. 33.1(a)(1); see Rhoades v. State, 934 S.W.2d 113, 120
(Tex. Crim. App. 1996); Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d). Appellant did not object below that his
sentences constituted cruel and unusual punishment, nor did he raise any such
claim in a post-verdict motion filed with the trial court. Appellant’s second issue is
overruled.
      We affirm the judgments of the trial court.




                                                    JIM R. WRIGHT
May 16, 2013                                        CHIEF JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.

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