                                                                                ACCEPTED
                                                                            14-15-00258-CR
                                                            FOURTEENTH COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                     11/17/2015 11:49:46 AM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK



                     No. 14-15-00258-CR
                             In the                        FILED IN
                       Court of Appeals            14th COURT OF APPEALS
                                                        HOUSTON, TEXAS
                            For the
                                                   11/17/2015 11:49:46 AM
                 Fourteenth District of Texas       CHRISTOPHER A. PRINE
                          At Houston                        Clerk
                  
                         No. 1389665
                  In the 263rd District Court
                   Of Harris County, Texas
                  
                   TOMMIE RAY LIMBRICK
                           Appellant
                               V.
                    THE STATE OF TEXAS
                            Appellee
                  
                STATE’S APPELLATE BRIEF
                  

                                       DEVON ANDERSON
                                       District Attorney
                                       Harris County, Texas

                                       ABBIE MILES
                                       State Bar No: 24072240
                                       Assistant District Attorney
                                       Harris County, Texas

                                       STUART TALLICHET
                                       Assistant District Attorney
                                       Harris County, Texas

                                       1201 Franklin, Suite 600
                                       Houston, Texas 77002
                                       Tel.: 713/755-5826
                                       FAX No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if oral argument is requested by the appellant.


                     IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Complainant, victim, or aggrieved party:

             Chelby Walker

      Counsel for the State:

             Devon Anderson  District Attorney of Harris County

             Abbie Miles  Assistant District Attorney on appeal

             Stuart Tallichet  Assistant District Attorneys at trial

      Appellant or criminal defendant:

             Tommie Ray Limbrick

      Counsel for Appellant:

             Sharon E. Slopis  Counsel on appeal

             George “William” Tennant Jr. & Dani Bradberry  Counsel at trial

      Trial Judge:

                        Hon. Jim Wallace  Presiding Judge


                                           i
                              TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT…………………………...…i

IDENTIFICATION OF THE PARTIES…………………………………….……..i

INDEX OF AUTHORITIES………………………………………………………iii

STATEMENT OF THE CASE……………………………………………………..1

STATEMENT OF THE FACTS…………………………………………………....1

SUMMARY OF THE ARGUMENT……………………………………………......2

REPLY TO APPELLANT’S FIRST ISSUE PRESENTED
        Trial counsel was not render ineffective assistance of counsel because appellant
cannot overcome the presumption of reasonably competent representation in light of
the silent record. Additionally, trial counsel was not deficient for failing to file a sworn
motion for community supervision because a sworn motion for community
supervision is not required when seeking community supervision from a judge. Also,
trial counsel was not deficient for objecting to the ten year sentence as cruel and
unusual punishment because the sentence was at the low end of the range of
punishment for the offense, and was warranted based on the facts of the
case……………………………………………………………………………...…...4
       Appellant’s claim that his sentence of ten years in prison constitutes cruel and
unusual punishment has not preserved this point of error for appellate review because
he neither objected in the trial court at the time sentence was pronounced, nor raised
the issue in a post-trial motion. For this reason alone, appellant’s point of error should
be overruled. If this Court chooses to address the merits of appellant’s second point
of error, the sentence of ten years in prison did not constitute cruel and unusual
punishment because it was within the range of punishment for the offense which
appellant pled guilty to, and was warranted considering the facts of the case……….13

CONCLUSION……………………………………………………………………20

CERTIFICATE OF SERVICE…………………………………………....……….21




                                             ii
                                         INDEX OF AUTHORITIES
Cases
Arriaga v. State,
  335 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (mem. op., not
  designated for publication) .............................................................................................. 19
Atkins v. Virginia,
  536 U.S. 304 (2002)........................................................................................................... 16
Baldridge v. State,
  77 S.W.3d 890 (Tex.App.—Houston [14th Dist.] 2002, pet. ref’d). ............................ 19
Beyince v. State,
  954 S.W.2d 878 (Tex. App.--Houston [14th Dist.] 1997, no pet.).............................. 10
Bingham v. State,
  915 S.W.2d 9 (Tex. Crim. App. 1994) .............................................................................. 6
Bone v. State,
  77 S.W.3d 828 (Tex. Crim. App. 2002) ............................................................................ 6
Burns v. State,
  122 S.W.3d 434 (Tex. App.--Houston [1st Dist.] 2003, pet. ref’d) ............................... 8
Cannon v. State,
  668 S.W.2d 401 (Tex. Crim. App. 1984) .......................................................................... 6
Cardenas v. State,
  30 S.W.3d 384 (Tex. Crim. App 2000) ........................................................................... 13
Chapman v. State,
   859 S.W.2d 509 (Tex. App.—Houston [1st Dist.] 1993) ............................................. 14
Charles v. State,
  146 S.W.3d 204 (Tex. Crim. App. 2004) .......................................................................... 6
Cruz v. State,
  838 S.W.2d 682 (Tex. App.—Houston [14th Dist.] 1992, pet ref’d) ........................... 15
Davis v. State,
  930 S.W.2d 765 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) ............................. 7
Diamond v. State,
  419 S.W.3d 435 (Tex. App.—Beaumont, 2012, no pet.) ............................................. 18
Downs v. State,
  244 S.W.3d 511 (Tex. App.--Fort Worth 2007, pet. ref’d) ............................................ 8
Ellison v. State,
  S .W.3d 714 (Tex. Crim. App. 2006) .............................................................................. 10
Gamble v. State,
  916 S.W.2d 92 (Tex. App.—Houston [1st Dist.] 1996, no pet) .................................... 7
Gavin v. State,
   404 S.W.3d 597 (Tex. App.--Houston [1st Dist.] 2010, no pet.). .............................. 15


                                                                iii
George v. State,
  No.03-05-00415-CR, 2007 WL 1451995 (Tex. App.—Austin 2007, no pet.) .......... 10
Goodspeed v. State,
  187 S.W.3d 390 (Tex. Crim. App. 2005) .......................................................................... 7
Hollin v. State,
  227 S.W.3d 117 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) ........................... 14
Huerta v. State,
  359 S.W.3d 887 (Tex. App.--Houston [14th Dist.] 2012, no pet.)................................ 7
Huynh v. State,
  833 S.W.2d 636 (Tex. App.—Houston [14th Dist.] 1992, no pet.) ............................. 11
Jackson v. State,
  877 S.W.2d 768 (Tex. Crim. App. 1994) .......................................................................... 7
Jagaroo v. State,
  180 S.W.3d 793 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’). ........................... 12
Lopez v. State,
  343 S.W.3d 137 (Tex. Crim. App. 2011) .......................................................................... 7
Louisiana ex rel. Francis v. Resweber,
  329 U.S. 459 (1947). .......................................................................................................... 15
Mata v. State,
  226 S.W.3d 425 (Tex. Crim. App. 2007) ...................................................................... 7, 8
McCarty v. State,
  227 S.W.3d 415 (Tex. App.--Texarkana 2007), aff'd, 257 S.W.3d 238 (Tex. Crim.
  App. 2008) ......................................................................................................................... 10
McFarland v. State,
  928 S.W.2d 482 (Tex. Crim. App. 1996) .......................................................................... 6
Nicholas v. State,
  56 S.W.3d 760 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)........................... 14
Peacock v. State,
  No. 14-00-00875-CR, 2001 WL 931135 (Tex. App.—Houston [14 Dist.] 2001, no
  pet.) ..................................................................................................................................... 19
Quintana v. State,
  777 S.W.2d 474 (Tex. App.—Corpus Christi 1989, pet. ref’d) ................................... 15
Ramos v. State,
  45 S.W.3d 305 (Tex. App.--Fort Worth 2001, pet. ref’d) .............................................. 8
Rezac v. State,
  782 S.W.2d 869 (Tex. Crim. App. 1990) ........................................................................ 14
Roper v. Simmons,
  543 U.S. 551 (2005). .......................................................................................................... 15
Ruiz v. State,
  No. 05-01-01176-CR, 2002 WL 981911 (Tex. App.—Dallas May 14, 2002, pet.
  dism’d) (mem. op., not designated for publication). .................................................... 11

                                                                      iv
Rylander v. State,
  101 S.W.3d 107 (Tex. Crim. App. 2003) .......................................................................... 6
Safari v. State,
  961 S.W.2d 437 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) ............................. 7
Samuel v. State,
  477 S.W.2d 611 (Tex. Crim. App. 1972) .................................................................. 15, 18
Solis v. State,
  945 S.W.2d 300 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) ........................... 14
Steward v. LaGrand,
  526 U.S. 115, 119 S.Ct. 1019, 143 L.Ed.2d 196 (1999) ................................................ 14
Strickland v. Washington,
  104 S.Ct. 2052 (1984)...................................................................................................... 5, 6
Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) .......................................................................... 5, 6
Toney v. State,
  3 S.W.3d 199 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)............................... 7
Vaughn v. State,
  931 S.W.2d 564 (Tex. Crim. App. 1996). ....................................................................... 12
Washington v. State,
  No. 01-13-00369-CR, 2014 WL 4658476 (Tex. App.–Houston [1st. Dist.] 2014, no
  pet.) (mem. op., not designated for publication)........................................................... 11
Wert v. State,
  383 S.W.3d 747 (Tex. App.--Houston [14th Dist.] 2012, no pet.)................................ 8
Young v. State,
  425 S.W.3d 469 (Tex. App.—Houston [1st. Dist.] 2012, pet. ref’d) ........................... 18
Statutes
TEX. PENAL CODE ANN. § 29.03(b) and § 12.32 (West 2013) ........................................ 18
TEX. CODE OF CRIM. PROC. art. 42.12 § 4(d)(3) (West 2015.......................................... 10
TEX. CODE OF CRIM. PROC. art. 42.12 § 5(a) (West 2015) .......................................... 9, 10
Rules
TEX. R. APP. P. 9.4(g) .............................................................................................................. i
TEX. R. APP. PROC. 33.1(a) ............................................................................................ 13, 15
TEX. R. APP. PROC. 38.1(1)(i) .............................................................................................. 12
TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................. i
TEX. R. APP. P. 39.1 ................................................................................................................. i




                                                                   v
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant was charged with aggravated sexual assault of a child under fourteen

years of age (C.R. 5). Appellant entered a plea of guilty to the offense, and the case

was reset for a punishment hearing (C.R. 71-72, 85; R.R.II 3). After a punishment

hearing, the trial court sentenced appellant to confinement for 10 years in the

Institutional Division of the Texas Department of Criminal Justice (C.R. 85; R.R.IV

4). A written notice of appeal was timely filed (C.R. 82, 88, C.R. Supp.II 3). No

motion for new trial was filed.

                        


                             STATEMENT OF FACTS

      The State challenges all factual assertions in appellant’s brief and presents the

following account of the facts.

      Appellant was charged with aggravated sexual assault of a child under fourteen

(C.R. 5). On February 13, 2015, appellant entered a plea of guilty to the offense, and

the case was reset for a punishment hearing (C.R. 71-72, 85; R.R.II 3). A punishment

hearing was held on February 16, 2015 (R.R.III). At the hearing Jennifer Ferrigno,

behavioral specialist, testified for the State (R.R.III 6). She worked for Cy-Fair

Independent School District at the time of the offense (R.R.III 7, C.R. 5). The

complainant, Chelby Walker, told Ms. Ferrigno that she had been “sexually assaulted”
by her stepfather, “Tommy” (R.R.III 9-10). She elaborated that “he had invited her to

lay in bed with him. And that he had kissed on her and then he had stuck his hand in

her pants.” (R.R.III 10). This made Chelby uncomfortable (R.R.III 11). Chelby started

to cry as she recounted what happened to her (R.R.III 11). Ms. Ferrigno called CPS

and Chelby’s parents (R.R.III 11).

      Chelby’s father, Gregory Walker, went to the apartment where Chelby lived

with her mother and Tommie Limbrick, appellant, and then contacted the police

(R.R.III 19). Chelby’s mom called appellant and asked “him to come [home] and set

the record straight in front of [everyone]” including Chelby (R.R.III 20). Appellant

arrived while Mr. Walker still there (R.R.III 19). Appellant apologized “for everything

that just happened” (R.R.III 20). Police officers went inside the apartment and came

out with appellant in handcuffs (R.R.III 22, 37).

      Deputy Thomas and Deputy Shriver, of the Harris County Sheriff’s Office,

responded to the scene on May 2, 2013 (R.R.III 32-34). Deputy Shriver interviewed

Chelby while Deputy Thomas spoke with appellant about the accusations that had

been made against him (R.R.III 36). Appellant said that he “kissed her” and “fondled

her” (R.R.III 36). He expressed remorse and his desire to handle it “within the family”

(R.R.III 36). Appellant was arrested (R.R.III 37).

      On the day of the incident Chelby was wearing her mom’s pink shirt (R.R.III

48, 61). Appellant called her “Kayle” which is her mom’s nickname, and Chelby did

not correct him (R.R.III 48-50). Appellant then “put his hands inside [her] pants”

                                            2
(R.R.III 49). Chelby stated that she went into the bedroom that morning because her

“real dad…told [her] that he would love [her] more if [she] got [her] step dad to do

something he wasn’t supposed to do” (R.R.III 51, 55). When appellant realized who

Chelby was he appeared apologetic and cried (R.R.III 53). Chelby claimed that her

real dad continued to ask her to do things “to put [her] step dad in jail” after the

incident (R.R.III 52). Chelby’s mom, Dakayle Limbrick AKA Claudette Walker,

testified that she wanted appellant to come home so they could be “a complete

family” and that she did not believe that appellant intentionally sexually assaulted

Chelby (R.R.III 60, 63). Ms. Limbrick testified that appellant had sleep apnea, and had

an unusual sleep schedule because he was a truck driver (R.R.III 64). Ms. Limbrick

described appellant as an “honest man” who was “very respectful of law

enforcement” (R.R.III 64). Appellant apologized to everyone for what he did (R.R.III

65). Ms. Limbrick married appellant ten days after he sexually assault Chelby (R.R.III

66).

                         


                        SUMMARY OF THE ARGUMENT

       Trial counsel was not render ineffective assistance of counsel because

appellant cannot overcome the presumption of reasonably competent representation

in light of the silent record. Additionally, trial counsel was not deficient for failing to

file a sworn motion for community supervision because a sworn motion for


                                            3
community supervision is not required when seeking community supervision from the

trial judge. Also, trial counsel was not deficient for objecting to the ten year sentence

as cruel and unusual punishment because the sentence was at the low end of the range

of punishment for the offense, and was warranted based on the facts of the case.


      Appellant’s claim that his sentence of ten years in prison constitutes cruel and

unusual punishment has not preserved this point of error for appellate review because

he neither objected in the trial court at the time sentence was pronounced, nor raised

the issue in a post-trial motion. For this reason alone, appellant’s point of error should

be overruled. If this Court chooses to address the merits of appellant’s second point

of error, the sentence of ten years in prison did not constitute cruel and unusual

punishment because it was within the range of punishment for the offense which

appellant pled guilty to, and was warranted considering the facts of the case.

                         


                     REPLY TO FIRST POINT OF ERROR

      Appellant claims that his trial counsel was deficient was not filing a motion for

community supervision and failing to object to the ten year sentence as cruel and

unusual punishment. However, appellant cannot overcome the presumption of

reasonably competent representation in light of the silent record. Additionally, trial

counsel was not deficient for failing to file a sworn motion for community supervision

because a sworn motion for community supervision is not required when seeking

                                            4
community supervision from the trial judge. Also, trial counsel was not deficient for

objecting to the ten year sentence as cruel and unusual punishment because the

sentence was at the low range of punishment for the offense, and was warranted

based on the facts of the case.

Analysis

       In order to prevail on a claim of ineffective assistance of counsel, a defendant

must show: (1) counsel’s performance was deficient; and (2) this deficiency was so

prejudicial that it rendered the trial unfair. Strickland v. Washington, 466 U.S. 668, 677-

78, 104 S.Ct. 2052, 2064 (1984). The first prong of the Strickland standard requires the

defendant to show that counsel’s performance fell below an objective standard of

reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Regarding the second prong, the defendant must show a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. Id. at 813.

       An appellate court examines the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel. Id. An appellate

court must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. Strickland, 466 U.S. at 688. Judicial

scrutiny of counsel’s performance must be highly deferential. Id. A defendant carries

the burden of proving his claim of ineffective assistance of counsel by a

                                             5
preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App.

1984). A defendant must overcome the strong presumption that an attorney’s actions

were sound trial strategy. Strickland, 466 U.S. at 688. Furthermore, a claim of

ineffective assistance of counsel must be firmly supported by the record. McFarland v.

State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Bingham v.

State, 915 S.W.2d 9 (Tex. Crim. App. 1994).

      The record on direct appeal usually will not be sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic decision making

as to overcome the presumption that counsel’s conduct was reasonable and

professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the

trial record contain sufficient information to permit a reviewing court to fairly

evaluate the merits of such a serious allegation. Id. In the majority of cases, the record

on direct appeal is simply underdeveloped and cannot adequately reflect the alleged

failings of trial counsel. Id. (quoting Thompson, 9 S.W.3d at 813-14).

      Trial counsel should ordinarily be afforded an opportunity to explain her

actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 110-

11 (Tex. Crim. App. 2003); see also Charles v. State, 146 S.W.3d 204, 210 (Tex. Crim.

App. 2004) (person with most, if not exclusive, knowledge of the salient facts

regarding an ineffectiveness claim is usually defendant’s trial counsel). Absent such an

opportunity, an appellate court should not find deficient performance unless the




                                            6
challenged conduct was so outrageous that no competent attorney would have

engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

      When the record is silent as to counsel’s trial strategy, an appellate court may

not speculate about why counsel acted as he did. Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994); Toney v. State, 3 S.W.3d 199, 210 (Tex. App.—Houston [14th

Dist.] 1999, pet. ref’d); Safari v. State, 961 S.W.2d 437, 445 (Tex. App.—Houston [1st

Dist.] 1997, pet. ref’d, untimely filed); Davis v. State, 930 S.W.2d 765, 769 (Tex. App.—

Houston [1st Dist.] 1996, pet. ref’d); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—

Houston [1st Dist.] 1996, no pet.). Without testimony from trial counsel, an appellate

court must presume that counsel had a plausible reason for his actions. Lopez v. State,

343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011); Mata v. State, 226 S.W.3d 425, 430-31

(Tex. Crim. App. 2007); Safari, 961 S.W.2d at 445. In the absence of such testimony,

an appellate court cannot meaningfully address claims of ineffectiveness. Davis, 930

S.W.2d at 769.

      A sound trial strategy may be imperfectly executed, but the right to effective

assistance of counsel does not entitle a defendant to errorless or perfect counsel.

Huerta v. State, 359 S.W.3d 887, 891 (Tex. App.--Houston [14th Dist.] 2012, no pet.).

It is not sufficient that the defendant show, with the benefit of hindsight, that his

counsel’s actions or omissions during trial were merely of questionable competence.

Id. Rather, to show that counsel’s acts or omissions were outside the range of




                                           7
professionally competent assistance, the defendant must show that counsel’s errors

were so serious that she was not functioning as counsel. Id.

      Following his conviction, appellant did not file a motion for new trial. As such,

appellant’s trial counsel has not had the opportunity to explain his trial strategy or

how his actions and inactions were possibly consistent with such a strategy.

Accordingly, the record is silent regarding counsel’s strategy. In such a circumstance,

it must be presumed that counsel had a plausible strategic reason for his manner of

representation. Mata, 226 S.W.3d at 430-31. Facing a silent record, it would be

inappropriate for a reviewing court to speculate that counsel’s representation of

appellant was not guided by sound trial strategy.

      Given the silent record, appellant has failed to overcome the presumption that

trial counsel’s challenged actions and omissions were sound trial strategy. For this

reason alone, appellant’s allegations of ineffectiveness for failing to file a sworn

motion for community supervision and object to the ten year sentence as cruel and

unusual punishment should be defeated. Wert v. State, 383 S.W.3d 747, 757-58 (Tex.

App.--Houston [14th Dist.] 2012, no pet.); Downs v. State, 244 S.W.3d 511, 515 (Tex.

App.--Fort Worth 2007, pet. ref’d); Burns v. State, 122 S.W.3d 434, 436-37 (Tex. App.--

Houston [1st Dist.] 2003, pet. ref’d); see also Ramos v. State, 45 S.W.3d 305, 311-12

(Tex. App.--Fort Worth 2001, pet. ref’d) (rejecting defendant’s eighteen allegations of

ineffectiveness solely because record was silent regarding trial counsel’s strategy). If

this Court chooses to address the merits of appellant’s claim, trial counsel was not

                                           8
deficient for failing to file a sworn motion for community supervision and failing to

object to the ten year sentence as cruel and unusual punishment.

          Regarding the motion for community supervision, appellant argues “that trial

counsel’s failure to file a motion for probation was per se ineffective assistance of

counsel….and that trial counsel’s failure to file a sworn motion for probation could

not possibly be considered ‘trial strategy’…”1 A judge is permitted to grant deferred

adjudication community supervision when “in the judge’s opinion the best interest of

society and the defendant will be served…after receiving a plea of guilty or nolo

contendre, hearing the evidence, and finding that it substantiates the defendant’s

guilty, defer further proceedings without entering an adjudication of guilt, and place

the defendant on community supervision.” TEX. CODE        OF   CRIM. PROC. art. 42.12 §

5(a) (West 2015).

          Appellant filed an election requesting the trial court assess his punishment

(C.R. 69). Appellant signed admonishments that the range of punishment for the

offense for which he was pleading guilty to was “a term of life or any term of not

more than 99 years or less than 5 years in the Institutional Division of the Texas

Department of Criminal Justice, and in addition, a fine not to exceed $10,000 may be

assessed.” (C.R. 73). Appellant did not file a sworn motion for community

supervision.



1
    Appellant’s brief at 16.


                                            9
       When a jury assesses punishment, and a defendant seeks community

supervision, for that defendant to be eligible to receive community supervision, he

must file a sworn motion that he is eligible to receive community supervision. TEX.

CODE   OF   CRIM. PROC. art. 42.12 § 4(d)(3) (West 2015); See McCarty v. State, 227

S.W.3d 415, 418 (Tex. App.--Texarkana 2007), aff'd, 257 S.W.3d 238 (Tex. Crim. App.

2008) (defendant is eligible for jury-recommended community supervision only if he

files a sworn motion, and proves he has no prior felony convictions); Beyince v. State,

954 S.W.2d 878, 879-80 (Tex. App.--Houston [14th Dist.] 1997, no pet.) ( §4(e) of

article 42.12 governing time to file application for probation is mandatory); See also

Ellison v. State, 201 S .W.3d 714, 718 (Tex. Crim. App. 006) (acknowledging that under

§ 4 of article 42.12, jury must make two determinations: “(1) the truth or falsity of the

information in the defendant's motion, and (2) whether to recommend that the

defendant be placed on community supervision instead of serving a term of

confinement”). This is not the case when a defendant pleads guilty and asks the judge

to assess his punishment.

       When a defendant pleads guilty to the charged offense, and asks the judge to

defer a finding of guilt and place him on community supervision, it is not required

that the defendant file a sworn motion for community supervision. TEX. CODE           OF

CRIM. PROC. art. 42.12 § 5(a) (West 2015) (lacking reference to motion or “sworn

motion” of any kind); See also George v. State, No.03-05-00415-CR, 2007 WL 1451995,

at *4 (Tex. App.—Austin 2007, no pet.) (holding that “[a]n application for probation

                                           10
is only required when punishment is assessed by a jury…[and thus c]ounsel’s

performance cannot be considered deficient based on his failure to file an unnecessary

motion”).

          Trial counsel was not deficient for failing to file a sworn motion for community

supervision because it was not necessary for appellant to have filed a sworn motion to

receive deferred adjudication community supervision under the facts and procedural

history of the present case. See Huynh v. State, 833 S.W.2d 636, 638 (Tex. App.—

Houston [14th Dist.] 1992, no pet.); See also Washington v. State, No. 01-13-00369-CR,

2014 WL 4658476, at *4 (Tex. App.–Houston [1st. Dist.] 2014, no pet.) (mem. op., not

designated for publication) (holding that “because punishment ultimately was not

assessed by a jury, trial counsel was not ineffective for failing to file a sworn

application”); See also Ruiz v. State, No. 05-01-01176-CR, 2002 WL 981911, at *1 (Tex.

App.—Dallas May 14, 2002, pet. dism’d) (mem. op., not designated for publication).

Accordingly, appellant’s first allegation of deficient performance should be overruled.

          Appellant then claims that his trial counsel was deficient for “[failing] to object

to [] appellant’s sentence, 10 years in prison for [a]ggravated [s]exual [a]ssault of a

child under 14, as cruel and unusual punishment under the Eighth Amendment”

because failure to make said objection waives the error on appeal.2 However, before

this Court can conclude that trial counsel was deficient for failing to make an

objection, appellant must demonstrate that the trial court would have erred by

2
    Appellant’s brief at 18-19.


                                              11
overruling the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App.

1996) (per curiam). Appellant cannot make this showing because his sentence lies

within the range of punishment. See Jagaroo v. State, 180 S.W.3d 793, 800 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’). It is not ineffective assistance of counsel to

abstain from making frivolous arguments and objections. Id. Appellant’s claim that

trial counsel was deficient for failing to object to his ten year sentence should be

overruled.

          Appellant then claims that there is a reasonable probability that, but for trial

counsel’s errors, a reasonable probability exists that the outcome would have been

different.3 Appellant does not state how the outcome would have been different if

trial counsel would have filed a sworn motion for community supervision and

objected to the ten year sentence as cruel and unusual. Appellant does not argue that

he would have received a lesser sentence or community supervision. Appellant,

instead, argues that he “received ineffective assistance of counsel at his sentencing

hearing [and t]his Court should reverse appellant’s convictions, and the case for

further proceedings.”4 Appellant’s allegations that trial counsel’s deficiencies

prejudiced him are inadequately brief because he makes no assertion of how the

outcome would have been different. See TEX. R. APP. PROC. 38.1(1)(i)(requiring

appellant’s brief to “contain a clear and concise argument for the contentions made,


3
    Appellant’s brief at 20-21.
4
    Appellant’s brief at 21.


                                             12
with appropriate citations to authorities”); See also Cardenas v. State, 30 S.W.3d 384, 393

(Tex. Crim. App 2000) (appellate court has no obligation to consider inadequately

briefed points of error). Appellant’s point of error should be overruled.


                    REPLY TO SECOND POINT OF ERROR


      Appellant claims that his sentence constitutes cruel and unusual punishment

because it was in the best interests of the child, Chelby, that he receive community

supervision. However, appellant has not preserved this point of error for appellate

review because he neither objected in the trial court at the time sentence was

pronounced, nor raised the issue in a post-trial motion. For this reason alone,

appellant’s point of error should be overruled. If this Court chooses to address the

merits of appellant’s second point of error, the sentence of ten years in prison did not

constitute cruel and unusual punishment because it was within the range of

punishment for the offense which appellant pled guilty to, and was warranted

considering the facts of the case.


Preservation of Error

      The Texas Rules of Appellate Procedure require “[a]s a prerequisite to

presenting a complaint for appellate review, the record must show that…the

complaint was made to the trial court by timely request, objection or motion….” TEX.

R. APP. PROC. 33.1(a). Even a constitutional or statutory right can be waived by failing



                                            13
to object. See Hollin v. State, 227 S.W.3d 117, 123 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d)(citing Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).

      In Rhoades v. State, the Court held that a defendant may not claim cruel and

unusual punishment on appeal when he failed to object in the trial court. Rhoades, 934

S.W.2d at 120. “Without an objection, any error in this regard has been forfeited.” Id.

(citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990)). Similarly, the

Fourteenth Court of Appeals concluded in Nicholas v. State that the defendant failed to

preserve error when he neither objected to the sentences, “as violating his

constitutional rights at the time they were announced” nor “[raised] these arguments

in a post-trial motion.” Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston

[14th Dist.] 2001, pet. ref’d) (concluding that defendant waived claim that one

concurrent and five consecutive sentences imposed for three counts of aggravated

sexual assault of child and three counts of indecency with a child were cruel and

unusual under both federal and state constitutions, when he did not raise them in trial

court). Appellant has waived his constitutional claim that his sentence violates the

Eighth Amendment’s prohibition against cruel and unusual punishment. Id. (citing Solis

v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d); Steward

v. LaGrand, 526 U.S. 115, 119, 119 S.Ct. 1019, 143 L.Ed.2d 196 (1999)); See Chapman v.

State, 859 S.W.2d 509, 515 (Tex. App.—Houston [1st Dist.] 1993), rev’d on other grounds,

921 S.W.2d 694 (Tex. Crim. App. 1996) (failing to object that punishment was cruel

and unusual waives error on appeal); Cruz v. State, 838 S.W.2d 682, 687 (Tex. App.—

                                            14
Houston [14th Dist.] 1992, pet ref’d); Quintana v. State, 777 S.W.2d 474, 479 (Tex.

App.—Corpus Christi 1989, pet. ref’d) (holding that when the defendant does not

object to cruel and unusual punishment at trial or in a motion for new trial the

argument on appeal is waived).

      In this case, appellant failed to object at the time of sentencing, and he did not

file a motion for new trial claiming that the sentence violated his constitutional right

to be free from cruel and unusual punishment. Appellant failed to preserve error in

his second point of error because he did not present it in the trial court. See TEX. R.

APP. P. 33.1(a); see also Rhoades, 934 S.W.2d at 120; Nicholas, 56 S.W.3d at 768. For this

reason alone, appellant’s point of error should be overruled.

Analysis

      The Eighth Amendment of the United States Constitution provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or

unusual punishment inflicted.” U.S. Const. amend. VIII. The Eighth Amendment has

been incorporated to apply to the States through the operation of the Due Process

Clause of the Fourteenth Amendment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459,

463 (1947). The prohibition against cruel and unusual punishment is measured by the

“evolving standards of decency that mark the progress of a maturing society.” Roper v.

Simmons, 543 U.S. 551, 561 (2005).

      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);

                                           15
Gavin, 404 S.W.3d at 606. Only in exceedingly rare cases will a sentence within the

statutory range be considered cruel and unusual. Solem v. Helm, 463 U.S 277, 288-90

(1983); See also Atkins v. Virginia, 536 U.S. 304, 312 (2002) (when analyzing claim of

cruel and unusual punishment, the appropriateness of a particular punishment for a

particular offense is best viewed by the legislation enacted).

          Appellant argues that his sentence was cruel and unusual because “it would

have been in the best interest of the child to place him, appellant, on probation, rather

that (sic) have the child live with the knowledge that she and her biological father

were responsible for sending appellant to prison for something he did not

intentionally and knowingly do, based upon the complainant’s set up of her

stepfather, which she did not explain to the school counselor, …, and the story the

complainant told the Children’s Assessment Center, which was contrived by the

complainant’s biological father.”5 This is a distortion of the facts of this case. During

the punishment hearing Chelby did testify that her biological father wanted her to do

something to get appellant in trouble, and that on the morning of the incident she was

wearing her mom’s shirt and appellant called her by the nickname he used for

Chelby’s mom (R.R.III 48-50, 51, 55). Chelby’s mom also testified that appellant had

sleep apnea and an unusual sleep pattern due to being a truck driver (R.R.III 64). This

effort at mitigation was all thrown to the wayside when the trial judge questioned

appellant about these issues. Appellant admitted that he knew he was in bed with

5
    Appellant’s brief at 24.


                                            16
Chelby when he put his hands down her pants (R.R.III 76-77). Appellant admitted

that what he did was intentional, and was “stupid” and the result of appellant’s lack of

control of his own hormones (R.R.III 77). Appellant admitted that he was guilty of

the offense and that the sleep apnea was just an excuse (R.R.III 77). Appellant “knew

who it was, [] knew how old she was, [] knew what [he] was doing was wrong; but [he]

couldn’t control [himself] and [he] did it anyway.” (R.R.III 77-78).

      Regarding the best interests of Chelby, the trial court clearly prioritized this

issue when assessing appellant’s punishment. The trial judge asked the State if sending

appellant to prison would do more damage than good to Chelby (R.R.III 79). The

State responded that sending appellant to prison would not do more damage to

Chelby than good (R.R.III 79). Chelby’s mom and appellant’s wife, Dakayle Limbrick

AKA Claudette Walker, was not supportive of Chelby. She married appellant ten days

after he sexually assaulted Chelby (R.R.III 66). When Chelby outcried, Ms. Limbrick

responded in disbelief and arranged for Chelby to be “[confronted]” by her attacker

hours after the assault (R.R.III 60, 63, 65-66). Ms. Limbrick made excuses for

appellant’s actions as a result of sleep apnea or an unusual sleep schedule (R.R.III 64).

Despite appellant’s guilty plea, Ms. Limbrick stated that she did not believe that

appellant intentionally sexually assaulted Chelby (R.R.III 60). Ms. Limbrick had a

history of keeping Chelby away from Mr. Walker, her biological father, (R.R.III 41-

42). Ms. Limbrick also allowed appellant to live in the same house with her two sons

despite the fact that appellant had been charged with sexually assaulting Chelby

                                           17
(R.R.III 41-42). Ms. Limbrick expressed her wishes for appellant to come home so

they could be a “complete family” (R.R.III 60, 63). The trial court clearly balanced the

best interests of Chelby and came to the conclusions that sending appellant to prison

was in her best interests because putting appellant in prison was the only way to

protect Chelby from appellant when it was obvious that Ms. Limbrick was wholly

unwilling to protect Chelby.

       Appellant was charged with aggravated sexual assault (C.R. 5). Appellant

invited Chelby to lay in bed with him, and he then started kissing her and put his hand

in her pants (R.R.III 10). Chelby had an abrasion on her genital area (R.R.IV 14, 27).

During the medical examination, Chelby specified that appellant “stuck his fingers up

in [her] vagina” (R.RIV 21). The facts of the case, alone, warrant a sentence of ten

years in prison.

       Additionally, the ten year sentence was within the statutory limits, and thus was

not cruel and unusual. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B) and (e) and §

12.32 (West 2015); Samuel, 477 S.W.2d at 614. Appellant’s sentence was not grossly

disproportionate. See Diamond v. State, 419 S.W.3d 435, 441 (Tex. App.—Beaumont,

2012, no pet.) (holding that sentence of 99 years for aggravated robbery after the

defendant pled “true” to violating the terms of his probation was not cruel and

unusual); Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston [1st. Dist.] 2012,

pet. ref’d) (holding that a sentence of twenty-five years for aggravated sexual assault of

a child does not constitute cruel and unusual punishment); Peacock v. State, No. 14-00-

                                           18
00875-CR, 2001 WL 931135, at * 1-2 (Tex. App.—Houston [14 Dist.] 2001, no pet.)

(mem. op., not designated for publication) (holding that sentence of thirty years did

not constitute cruel and unusual punishment); See also Arriaga v. State, 335 S.W.3d 331,

336 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (mem. op., not designated for

publication) (holding that “[t]he trial court’s sentence of life imprisonment is not

grossly disproportionate to appellant’s commission of aggravated sexual assault of a

child less than 14 years of age.”).

       “It has long been recognized that if the punishment assessed is within the

range of punishment established by the Legislature under its constitutional authority,

there is no violation of the state constitutional provisions against cruel and unusual

punishment.” Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.]

2002, pet. ref’d). Since appellant’s ten year sentence falls within the statutory range, his

punishment is not cruel and unusual. Further the facts of the present case warrant a

sentence of ten years in prison. Appellant’s point of error should be overruled.

                            




                                            19
                                 CONCLUSION

      It is respectfully submitted that all things are regular and that the conviction

should be affirmed.

                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas



                                                    /s/ Abbie Miles
                                                    ABBIE MILES
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    TBC No. 24072240
                                                    Miles_abbie@dao.hctx.net
                                                    Curry_Alan@daohctx.net



                      CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document has

a word count of 6130 words, based upon the representation provided by the word

processing program that was used to create the document.

                                                    /s/ Abbie Miles

                                                    Abbie Miles
                                                    Assistant District Attorney




                                         20
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on November 17, 2015:


      Sharon E. Slopis
      Attorney at Law
      P.O. Box 980803
      Houston, Texas 77098



                                                     /s/ Abbie Miles
                                                     ABBIE MILES
                                                     Assistant District Attorney
                                                     Harris County, Texas
                                                     1201 Franklin, Suite 600
                                                     Houston, Texas 77002
                                                     (713) 755-5826
                                                     TBC No. 024072240
                                                     Miles_abbie@dao.hctx.net
                                                     Curry_Alan@dao.hctx.net


Date: November 17, 2015




                                          21
