Affirmed and Memorandum Opinion filed November 5, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00630-CR

                  CARLOS ALFREDO ZUNIGA, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 391st District Court
                         Tom Green County, Texas
                    Trial Court Cause No. D-16-0742-SB

                 MEMORANDUM OPINION

      Appellant Carlos Alfredo Zuniga appeals a judgment sentencing him to
thirty-five years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice for the first-degree felony offense of engaging in
an organized criminal activity. In two issues, he argues that: (1) his thirty-five-
year sentence is grossly disproportionate to the offense in violation of the Eighth
Amendment to the United States Constitution; and (2) his trial counsel was
ineffective in failing to object to the purportedly disproportionate sentence. We
reject appellant’s first issue because appellant failed to preserve error. We reject
appellant’s second issue because he has not demonstrated prejudice. We affirm the
trial court’s judgment.

                                       Background

       A Tom Green County grand jury indicted appellant for the first-degree
felony offense of engaging in an organized criminal activity. The State alleged
that appellant, along with seven other co-defendants, collaborated to commit the
offense of aggravated robbery or theft of property with an aggregate value of
$150,000.

       As discussed in more detail below, the trial court heard evidence that
appellant planned and enlisted his co-defendants to carry out an aggravated
robbery to steal four trucks from a construction site and later sell them in Mexico.
Appellant pleaded guilty to the charged offense with no agreed recommendation on
punishment. After a punishment hearing, the trial court sentenced appellant to
thirty-five years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice.

       Appellant timely appealed.

                                         Analysis1

A.     Eighth Amendment

       In his first issue, appellant argues that his sentence is unconstitutionally
disproportionate in violation of the Eighth Amendment to the United States
Constitution. Appellant does not dispute that the trial court sentenced him to a


       1
        The Supreme Court of Texas transferred this case to our court from the Third Court of
Appeals. See Tex. Gov’t Code § 73.001. We are unaware of any conflict between Third Court
of Appeals precedent and that of this court on any relevant issue. See Tex. R. App. P. 41.3.

                                             2
period of confinement within the statutory range of punishment.2                    He argues
however that his punishment is cruel and unusual because it is grossly
disproportionate to the crime committed.

       The Eighth Amendment of the United States Constitution prohibits cruel and
unusual punishment, including extreme sentences grossly disproportionate to the
crime committed. See U.S. Const. amend. VIII; see also Battle v. State, 348
S.W.3d 29, 30 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Appellant was
required to timely object in the trial court to preserve his appellate complaint that
his sentence is unconstitutionally excessive. See Tex. R. App. P. 33.1(a); Battle,
348 S.W.3d at 30; see also Chatman v. State, No. 14-17-00919-CR, 2019 WL
3783578, at *2 (Tex. App.—Houston [14th Dist.] Aug. 13, 2019, no pet.) (mem.
op., not designated for publication). Appellant concedes that he did not raise the
issue of gross disproportionality at the punishment hearing or in a motion for new
trial. Accordingly, appellant did not preserve the right to raise this issue on appeal.
See Tex. R. App. P. 33.1(a); Battle, 348 S.W.3d at 30; Chatman, 2019 WL
3783578, at *2.

       We overrule appellant’s first issue. See Lozano v. State, 577 S.W.3d 275,
277 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

B.     Ineffective Assistance of Counsel

       In his second issue, appellant contends that his counsel provided ineffective
assistance by failing to object on the ground that appellant’s sentence is grossly
disproportionate to the offense.



       2
          Because appellant was convicted of a first-degree felony, his thirty-five-year sentence
fell within the prescribed legislative range of punishment, which is five to ninety-nine years or
life. See Tex. Penal Code § 12.32 (a).

                                               3
      We examine claims of ineffective assistance of counsel under the familiar
two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
See Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d). Under Strickland, the defendant must demonstrate that his trial
counsel’s representation was deficient, and that the deficient performance was so
serious that it deprived him of a fair trial. Strickland, 466 U.S. at 687. A deficient
performance will deprive the defendant of a fair trial only if it prejudices the
defense. Id. at 691-92. To demonstrate prejudice, the defendant must show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694. Failure to make the required
showing of either deficient performance or prejudice defeats an ineffective
assistance argument. Id. at 697.

      When a trial court would not have erred in overruling an objection to the
sentence imposed, an appellant has failed to show prejudice necessary to prevail on
an ineffective assistance of counsel argument. See Jagaroo v. State, 180 S.W.3d
793, 800-01 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing Vaughn v.
State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996)). In today’s case, the trial
court would not have erred in overruling an Eighth Amendment objection to
appellant’s sentence because his sentence lies within the punishment range. See id.
Appellant’s thirty-five-year sentence for engaging in organized criminal activity is
well within the statutory range of punishment that the legislature has deemed
appropriate for the offense appellant committed.             See Tex. Penal Code
§ 71.02(b)(3) (engaging in criminal activity where underlying offense is
aggravated robbery is subject to imprisonment for a term of 15 to 99 years or life).
Generally, a sentence that is within the range of punishment established by the
legislature will not be disturbed on appeal. See Jackson v. State, 680 S.W.2d 809,


                                          4
814 (Tex. Crim. App. 1984); Smith v. State, 290 S.W.3d 368, 376 (Tex. App.—
Houston [14th Dist.] 2009, pet. ref’d); Williams v. State, 191 S.W.3d 242, 262-63
(Tex. App.—Austin 2006, no pet.); Jagaroo, 180 S.W.3d at 800-01.

       A punishment is grossly disproportionate to the crime committed only when
an objective comparison of the gravity of the offense against the severity of the
sentence shows that the imposed sentence was extreme. See Hicks v. State, 15
S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We consider
the gravity of the offense 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.3 State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App.
2016). Only in rare or extreme cases in which this threshold comparison leads to
an inference of gross disproportionality will a court then compare the defendant’s
sentence with the sentences received by other offenders in the same jurisdiction
and with the sentences imposed for the same crime in other jurisdictions. Id.

       Prior to sentencing appellant, the trial court heard evidence that appellant
planned an aggravated robbery of the four vehicles and enlisted the assistance of
numerous individuals.         During the robbery, two of the perpetrators bound a
bystander with duct tape and pointed shotguns at him.4 One of the co-defendants
told a law enforcement officer that appellant promised payment if the co-defendant
successfully transported the trucks across the United States-Mexico border.

       3
          When engaging in this analysis, the trial court is not required to consider mitigating
evidence. See Wilkerson v. State, 347 S.W.3d 720, 721 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d) (citing Harmelin v. Michigan, 501 U.S. 957, 995-96 (1991)); Lozano v. State, No. 03-
14-00107-CR, 2015 WL 6460015, at *2 (Tex. App.—Austin Oct. 23, 2015, pet. ref’d) (mem.
op., not designated for publication) (same).
       4
         One of the investigating officers testified that there was no indication that appellant was
one of the two individuals who stole the trucks from the construction site. Evidence indicated,
however, that appellant was present when one of the other co-defendants purchased one of the
firearms used during the robbery.

                                                 5
Appellant attempted to divert law enforcement officers’ attention toward innocent
third parties during the investigation, in an effort to evade suspicion. Evidence
indicated that appellant drove one of the stolen trucks to the border and that
appellant tampered with evidence by hiding one of the firearms used during the
aggravated robbery. Appellant also admitted committing prior offenses of theft,
family violence, and assault.

      Considering all the facts and circumstances, appellant’s sentence was not
grossly disproportionate, and the trial court would not have abused its discretion in
overruling an objection to his sentence. See Jagaroo, 180 S.W.3d at 800-01 (trial
counsel not ineffective for failing to object to punishment imposed where
punishment fell within statutory range). Therefore, appellant has not met the
prejudice prong of the Strickland analysis. See Strickland, 466 U.S. at 694, 697.

      We overrule appellant’s second issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                       /s/       Kevin Jewell
                                                 Justice


Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                             6
