                                 NO. 12-09-00192-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

TINA RODRIGUEZ,                                  '            APPEAL FROM THE 159TH
APPELLANT

V.                                               '            JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                         '            ANGELINA COUNTY, TEXAS


                                  MEMORANDUM OPINION
       Tina Rodriguez appeals her conviction for compelling prostitution, for which she was
sentenced to imprisonment for eleven years. In three issues, Appellant contends that she received
ineffective assistance of counsel during her trial on punishment and that she is entitled to a new
trial because the presentence investigation report is missing from the record. We affirm.


                                          BACKGROUND
       Appellant pleaded guilty to the offense of compelling prostitution. Appellant convinced a
fifteen year old girl to engage in prostitution and then share the proceeds with Appellant. The trial
court held a hearing to determine Appellant’s punishment. At the hearing, the trial court was
presented with the presentence investigation report, and Appellant briefly testified. The trial
court then sentenced Appellant to eleven years of imprisonment. This appeal followed.


                             INEFFECTIVE ASSISTANCE OF COUNSEL
       In her first and second issues, Appellant contends that she received ineffective assistance
of counsel at her trial on punishment. Specifically, Appellant argues that her trial counsel was
ineffective because he presented only limited evidence during the hearing on punishment and
failed to object to the trial court’s sentence.
Standard of Review and Applicable Law
        Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms. See Strickland, 466
U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any
portion of trial counsel's representation, but will judge the claim based on the totality of the
representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
        To satisfy the Strickland standard, the appellant is also required to show prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999). To establish prejudice, the appellant must prove that but for counsel’s deficient
performance, the result of the proceeding would have been different. See Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068.
        In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).        We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. The appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. The appellant cannot meet this burden if the record does not affirmatively support
the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record
on direct appeal to evaluate whether trial counsel provided ineffective assistance). A record that
specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an
ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.]
1994, pet. ref'd).
Failure to Present Adequate Evidence on Punishment
        Appellant was the sole witness during the trial on punishment. She testified that she had
previously been in jail for two and one-half months for not paying her child support. She stated

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further that during the time “when all this was going on,” she had “hung out” with the wrong
crowd and got into “testing that drug.” She also testified that she had changed her life and was not
doing that any more. Appellant admitted that she could have controlled her life better, but did not,
and expressed her remorse for committing the charged offense. She stated that she could be a
productive member of society if the trial court sentenced her to probation because she was “a
totally different person.”
       On appeal, Appellant asserts that her trial counsel chose not to present detailed evidence on
these matters, and therefore did not fully present her history and qualification for probation to the
trial court. She also complains that counsel did not argue for probation, did not call the probation
officer preparing the presentence investigation report (PSI) as a witness, and did not offer any
testimony concerning available programs or resources to assist her. The record shows that the
trial court did not ask for argument on punishment. Moreover, Appellant does not identify the
additional witnesses that should have testified, or describe the substance of any potential witness’s
testimony. See Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (holding that to
obtain relief on ineffective assistance of counsel claim based on uncalled witness, accused must
show witness had been available to testify and testimony would have been of some benefit to
defense).    Nor does she state with any specificity what, if any, additional information trial
counsel should have elicited from her during her testimony.
       Appellant also failed to file a motion for new trial. Thus, trial counsel has not had an
opportunity to explain the reasons for his decisions at the punishment hearing. See Bone v. State,
77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (stating that defense counsel should be given
opportunity to explain actions before being condemned as unprofessional and incompetent); see
also Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d)
(holding that because appellant did not call his trial counsel during motion for new trial hearing to
give reasons for failure to investigate or present mitigating evidence, record does not support
ineffective assistance claim). When the record fails to show why counsel did not present certain
evidence at the trial on punishment, we cannot conclude that counsel’s performance was deficient.
See Jackson, 877 S.W.2d at 771-72.
Failure to Object to Punishment
       Appellant also argues that Appellant’s trial counsel should have objected to the
punishment that she received.

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        Appellant was convicted of compelling prostitution, a second degree felony. See TEX.
PENAL CODE ANN. § 43.05 (Vernon Supp. 2009). The punishment for such an offense is a term
of imprisonment between two and twenty years. Id. § 12.33 (Vernon Supp. 2009). The trial court
assessed punishment at eleven years, which falls within the range set forth by the Texas
Legislature. Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se.
See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d
949, 952 (Tex. Crim. App. 1973).
        Appellant contends that her sentence is grossly disproportionate to the facts of this case in
violation of the Eighth Amendment. See U.S. CONST. amend. VIII; Solem v. Helm, 463 U.S.
277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d 637 (1983). The proportionality of a sentence is
evaluated by considering 1) the gravity of the offense and the harshness of the penalty, 2) the
sentences imposed on other criminals in the same jurisdiction, and 3) the sentences imposed for
commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at 3011.
Unless Appellant establishes that her sentence is grossly disproportionate to her crime, we need
not address the second and third criteria set out in Solem. See McGruder v. Puckett, 954 F.2d
313, 316 (5th Cir.1992); see also Robertson v. State, 245 S.W.3d 545, 549 (Tex. App.–Tyler 2007,
pet. ref'd).
        In determining whether Appellant's sentence is grossly disproportionate, we are guided by
the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L.Ed.2d 382 (1980). After
considering the facts of the instant case in light of Rummel, we conclude that Appellant's sentence
was not unconstitutionally disproportionate. See id., 445 U.S. at 266, 100 S. Ct. at 1134-35
(holding that life sentence is not cruel and unusual punishment for obtaining $120.75 by false
pretenses where appellant had a prior felony conviction for fraudulent use of credit card to obtain
$80.00 worth of goods or services and another for passing a forged check in amount of $28.36).
Absent a threshold showing of disproportionality, we need not address the second and third Solem
criteria. Therefore, we cannot conclude that Appellant's sentence constituted cruel and unusual
punishment. And because we cannot conclude that Appellant’s sentence constituted cruel and
unusual punishment, Appellant has not shown that counsel’s performance was deficient for failing
to object to the sentence. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996)
(cannot successfully argue that counsel’s failure to object amounted to ineffective assistance
without showing that trial court would have committed error in overruling such an objection); see

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also Payne v. State, No. 14-07-00688-CR, 2008 Tex. App. LEXIS 2726, at *7 (Tex.
App.–Houston [14th Dist.] Apr. 17, 2008, no pet.) (mem. op., not designated for publication)
(same applied to claim of disproportionate sentence).
Conclusion
         Based upon our review of the record, we hold that Appellant has not shown that her trial
counsel’s performance was deficient.               Therefore, she has not met the burden imposed by
Strickland. See Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065. Accordingly, we overrule
Appellant’s first and second issues.


                             MISSING PRESENTENCE INVESTIGATION REPORT
         In her third issue, Appellant argues that she is entitled to a new trial because the
presentence investigation report is missing from the record. See TEX. R. APP. P. 34.6(f). The
clerk’s record has now been supplemented to include the presentence investigation report.
Accordingly, we overrule Appellant’s third issue as moot.


                                                    DISPOSITION
         Having overruled Appellant’s first, second, and third issues, we affirm the judgment of the
trial court.
                                                                  BRIAN HOYLE
                                                                       Justice


Opinion delivered February 26, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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