Opinion issued August 29, 2014




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00414-CR
                            ———————————
                           STEVIE WYRE, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Case No. 1364440


                        MEMORANDUM OPINION

      Stevie Wyre pleaded guilty to aggravated sexual assault of a child younger

than fourteen years of age without an agreed recommendation on punishment.

After a hearing on the presentence investigation (PSI), the trial court found

appellant guilty and assessed his punishment at twenty-five years in prison.
      In three points of error, appellant contends that (1) he received ineffective

assistance of counsel during the PSI hearing, (2) the trial court erred in accepting

letters prior to sentencing containing unsworn victim impact statements requesting

that appellant be given a life sentence, and (3) appellant’s twenty-five year

sentence is disproportionately severe and violates the Eighth Amendment’s

prohibition against the infliction of cruel and unusual punishment. We affirm.

                                    Background

      Appellant pleaded guilty to sexually assaulting A.C., his thirteen-year-old

stepdaughter. 1     The caseworker with the Texas Department of Family and

Protective Services (DFPS) testified at the PSI hearing that all three girls had “a lot

of fear in them” and were having a “really hard time disclosing and talking about

the abuse.” A.C., for example, did not want to celebrate her recent birthday

because appellant had sexually assaulted her on her birthday. The caseworker

informed all three girls that they “had the opportunity to come [to] court and

express their desire” or write out a statement for the court that she would deliver

for them.         At the conclusion of the caseworker’s testimony, the State

acknowledged that it had provided copies of the girls’ letters to the court and



1
      Originally charged with one count of Aggravated Sexual Assault of a Child under
      14 (A.C., the complainant), one count of Sexual Assault of a Child 14-17 (M.C.)
      and Prohibited Sexual Conduct (M.G.), the disposition of the charges regarding
      the two other sisters is not apparent from the record.


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defense counsel. Asked by the court if defense counsel objected to “these being

admitted to the PSI report,” he replied, “No, Your Honor, I have no objection.”

      Appellant also testified at the PSI hearing and proved that he was eligible for

community supervision (e.g., he had never been convicted in any state of a felony

offense, or placed on felony adult probation). He testified that, were the court to

place him on community supervision, he would follow the court’s rules and work

to support his ten dependents. Appellant further testified that he had an eleven-

month-old and a five-year-old who needed him, and he asked the court for a

second chance so that he could be there for his kids and “be a better father.” He

acknowledged, however, that if placed on community supervision, he would be

prohibited from having any contact with those children and would be under orders

to pay child support.

      On cross-examination, appellant admitted that he had sexually assaulted his

three stepdaughters and had beaten M.G. after she told a school counselor about

the ongoing abuse. Nevertheless, appellant testified that he wanted to change his

life and that he deserved a second chance because he knew he was a “good father”

to his children. Despite his admissions of having sexually assaulted A.C. on two

previous occasions, appellant considered himself a good father because he helped

her with her homework and cared for her when she was sick.




                                         3
      Both the State and the defense made closing arguments. In closing, the State

asked the court to “look at the letters from the children” and to consider all of the

evidence in the PSI report. The PSI report was entered into evidence, along with

the attached letters. After confirming that the PSI report had been offered and

admitted into evidence, the trial court found appellant guilty and assessed his

punishment at twenty-five years’ incarceration. Appellant did not object to the

assessed punishment during the hearing or challenge his assessed punishment in a

motion for new trial.

                        Disproportionate-Sentence Claim

      Appellant’s second point of error contends that the trial court erred when it

assessed his punishment at twenty-five years’ incarceration because the imposition

of such a disproportionately severe punishment in this case violates the Eighth

Amendment’s prohibition against the infliction of cruel and unusual punishment.

See U.S. CONST. amend. VIII.

      Appellant concedes that he has not preserved this issue for appellate review.

See TEX. R. APP. P. 33.1(a) (“As a prerequisite to presenting a complaint for

appellate review, the record must show that: (1) the complaint was made to the trial

court by a timely request, objection, or motion . . . .”); see also Landers v. State,

402 S.W.3d 252, 254 (Tex. Crim. App. 2013). He nevertheless contends that we




                                         4
should reach the merits of his argument because the trial court’s imposition of such

a disproportionately severe punishment amounts to fundamental error.

      Contrary to appellant’s position, the right to be free from cruel and unusual

punishment pursuant to the Eighth Amendment is a waiveable constitutional right,

and, thus, disproportionate-sentence claims must be preserved for appellate review.

See Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d) (“[I]n order to preserve for appellate review a complaint that a sentence

is grossly disproportionate, constituting cruel and unusual punishment, a defendant

must present to the trial court a timely request, objection, or motion stating the

specific grounds for the ruling desired.”); see also Rhoades v. State, 934 S.W.2d

113, 120 (Tex. Crim. App. 1996) (noting that constitutional rights, including right

to be free from cruel and unusual punishment, may be waived).              Here, it is

undisputed that appellant did not assert his disproportionate-sentence claim during

the punishment hearing nor did he file a motion for new trial or otherwise present

his objection to the imposed sentence. As such, appellant has not preserved this

issue for our review. See TEX. R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d

333, 339 (Tex. Crim. App. 2012); see also Noland, 264 S.W.3d at 151–52.

      Even were appellant to have preserved this complaint for our review, he

would still not be entitled to relief. Appellate courts rarely consider a punishment

that is within the statutory range for the offense established by the Legislature to be



                                          5
excessive or unconstitutionally cruel or unusual under either the Texas

Constitution or the United States Constitution. See Ajisebutu v. State, 236 S.W.3d

309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also Kirk v. State,

949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). Indeed, the trial

court’s discretion to impose any punishment within the prescribed range has been

described by the Court of Criminal Appeals as being “essentially unfettered.” Ex

parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006). Aggravated sexual

assault of a child is a first-degree felony, carrying a punishment range of five to

ninety-nine years or life imprisonment in TDCJ.          TEX. PENAL CODE ANN.

§ 12.32(a); see also TEX. PENAL CODE ANN. § 22.021(e). Thus, appellant’s twenty-

five year sentence falls within the statutory range for his offense, and as such, is

presumptively neither cruel nor unusual.

      An assessed punishment that is within the statutory range, however, must

still be proportionate to the underlying offense. See Ex parte Chavez, 213 S.W.3d

at 323; Ajisebutu, 236 S.W.3d at 314. We analyze Eighth Amendment challenges

by reviewing the proportionality of the sentence compared to the crime. See

Graham v. Florida, 560 U.S. 48, 60, 130 S. Ct. 2011, 2022 (2010); Solem v. Helm,

463 U.S. 277, 292, 103 S. Ct. 3001, 3011 (1983). Our objective analysis is guided

by (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



                                           6
for the commission of the crime in other jurisdictions. Id.; Culton v. State, 95

S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Only if we

find that the sentence is grossly disproportionate to the offense under the first

factor will we then consider the next two factors to determine whether the sentence

is unconstitutionally excessive. Graham, 560 U.S. at 60, 130 S. Ct. at 2022.

      Appellant argues that a twenty-five year sentence is grossly disproportionate

to the crime in light of the fact that he was eligible for community supervision (i.e.,

he has no prior felony convictions and has never been granted adult probation).

That appellant was eligible for community supervision, however, is irrelevant to a

comparison of the gravity of appellant’s offense and the harshness of his sentence.

See Jacoby v. State, 227 S.W.3d 128, 131 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (citing Solem, 463 U.S. at 292, 103 S. Ct. at 3011). With regard to the

second and third prongs, appellant makes a blanket assertion—that “there is

evidence in the record . . . reflecting sentences imposed on similar offenses in

Texas or other jurisdictions.” But no citation to the appellate record is given, and

the record contains no such evidence. Indeed, nothing in the record shows that

appellant’s punishment is grossly disproportionate to the charged crime of sexual

assault of a child less than fourteen years of age. 2


2
      We further note that our sister courts have upheld more severe punishments for
      similarly charged offenses. See, e.g., Arriaga v. State, 335 S.W.3d 331, 335 (Tex.
      App.—Houston [14th Dist.] 2010, pet. ref’d) (holding life sentence for aggravated

                                            7
      We overrule appellant’s second point of error.

              Unsworn Victim Impact Statements Included in PSI

      Appellant’s third point of error contends that the trial court erred by

“accepting letters from the state containing unsworn victim impact statements.”

The letters were from the complainant and her sisters, M.G. and M.C., all of whom

appellant testified to having sexually assaulted. In these letters, appellant’s three

stepdaughters expressed their opinion that appellant should be imprisoned for the

charged offense. In fact, two of the girls, including the complainant, stated that

appellant should be assessed the maximum punishment in this case of life

imprisonment.

      Here, again, appellant concedes that he did not object to the trial court’s

consideration of the letters on any ground and has not preserved this issue for our

review. See TEX. R. APP. P. 33.1(a) (“As a prerequisite to presenting a complaint

for appellate review, the record must show that: (1) the complaint was made to the

trial court by a timely request, objection, or motion . . . .”); see also Landers, 402

S.W.3d at 254. He nevertheless contends that we should reach the merits of his

argument because the trial court’s consideration of the letters prior to sentencing in


      sexual assault of child less than fourteen years of age was not grossly
      disproportionate to offense and, therefore, constitutionally permissible);
      Williamson v. State, 175 S.W.3d 522, 525 (Tex. App.—Texarkana 2005, no pet.)
      (holding three consecutive life sentences for three counts of aggravated sexual
      assault of child less than fourteen years of age not grossly disproportionate to
      offense and, therefore, constitutionally permissible).

                                          8
violation of Texas Code of Criminal Procedure Article 42.03 amounts to

fundamental error.

      First, article 42.03, which permits a “victim . . . to appear in person to

present to the court and to the defendant a statement of the person’s views about

the offense, the defendant, and the effect of the offense on the victim,” does not

apply to victim statements included in PSI reports that are admitted into evidence

before the pronouncement of sentencing. See TEX. CODE CRIM. PROC. ANN. art.

42.03 (West 2006 & Supp. 2013) (emphasis added); Fryer v. State, 68 S.W.3d 628,

632 (Tex. Crim. App. 2002) (holding that article 42.03 does not prohibit trial

courts from considering victim’s punishment recommendations in PSI report and,

indeed, article 42.03 has “nothing to do with a PSI at all.”).       Second, any

objections to the admission of a PSI report, including its contents, must be

preserved for appellate review. See Brand v. State, 414 S.W.3d 854 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d). That was not done here. See Moody v. State,

827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Dean v. State, 749 S.W.2d 80, 83

(Tex. Crim. App. 1988).

      Even had appellant preserved this issue, however, his position is untenable.

When assessing punishment, a trial court may consider any evidence relevant to

sentencing, including the contents of a PSI report. TEX. CODE CRIM. PROC. art.

42.12, § 9; see Jagaroo v. State, 180 S.W.3d 793, 799 (Tex. App.—Houston [14th



                                        9
Dist.] 2005, pet. ref’d) (“The trial court was authorized by statute to consider the

PSI report and testimony [of the victim and the victim’s relatives] prior to

pronouncing punishment.”). The Court of Criminal Appeals has recognized that a

PSI report may contain evidence that, in the punishment stage of a trial, would

have been inadmissible due to its subject matter, and held that a trial court has

authority to consider a victim’s punishment recommendation when it is contained

within a PSI report. Fryer, 68 S.W.3d at 632.

      We overrule appellant’s second point of error.

                        Ineffective Assistance of Counsel

      Appellant’s third point of error contends that he received ineffective

assistance of counsel during the PSI hearing based on his trial counsel’s failure to

object to (1) unsworn victim impact statements that were entered into evidence

before his punishment was assessed, and (2) the assessed punishment on the

ground that it was cruel and unusual because it was grossly disproportionate to the

underlying offense.

A.    Standard of Review and Applicable Law

      To prevail on an ineffective-assistance-of-counsel claim, the defendant must

demonstrate, by a preponderance of the evidence, that (1) his trial counsel’s

performance was deficient and (2) a reasonable probability exists that, but for the

deficiency, the result of the proceeding would have been different. Strickland v.



                                        10
Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984); see also

Hernandez v. State, 988 S.W.2d 770, 770–74 (Tex. Crim. App. 1999) (holding

Strickland standard applies to ineffective-assistance-of-counsel claims regarding

noncapital sentencing proceedings).      Under the first prong of Strickland, the

defendant must show that his counsel’s performance fell below an objective

standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim.

App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The

second prong of Strickland requires the defendant to demonstrate prejudice—a

reasonable probability that, but for his counsel’s unprofessional errors, the result of

the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068; Thompson, 9 S.W.3d at 812. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,

104 S. Ct. at 2068.

      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and therefore the defendant must

overcome the presumption that the challenged action constitutes “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009). Our review is highly deferential to counsel, and we do

not speculate regarding counsel’s trial strategy. Bone v. State, 77 S.W.3d 828, 833

(Tex. Crim. App. 2002). If the record is silent regarding the reasons for counsel’s



                                          11
conduct—as it usually is on direct appeal—then the record is insufficient to

overcome the presumption that counsel followed a legitimate trial strategy. Tong

v. State, 25 S.W.3d 707, 713–14 (Tex. Crim. App. 2000) (holding counsel’s failure

to object to “arguably objectionable” victim impact testimony and evidence was

not ineffective assistance of counsel when record was silent as to counsel’s

strategy); see also Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007)

(rejecting court of appeals’s conclusion that there was “no conceivable reason” for

trial counsel’s actions and stating that because record was silent on this point,

defendant “failed to rebut the presumption that trial counsel’s decision was in some

way—be it conceivable or not—reasonable”).

B.    Analysis

      The record is silent regarding why counsel did not object to the admission of

the girls’ letters as part of the PSI report or to the punishment assessed. Without

trial counsel’s explanation, the record is insufficient to evaluate whether counsel’s

assistance fell below an objective standard of reasonableness.        See Tong, 25

S.W.3d at 713–14 (holding counsel’s failure to object to “arguably objectionable”

victim impact testimony and evidence was not ineffective assistance of counsel

when trial record was silent as to counsel’s strategy); see also Thompson, 9 S.W.3d

at   813   (holding   that   record   must    affirmatively   demonstrate    alleged

ineffectiveness). As such, appellant has failed to overcome the strong presumption



                                         12
that his counsel’s conduct was based on a legitimate trial strategy. See Strickland,

466 U.S. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687.

      Additionally, before we may conclude that counsel was ineffective for

failing to make an objection, appellant must show that the trial judge would have

erred in overruling the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex.

Crim. App. 1996). It is not ineffective assistance for trial counsel to forego making

frivolous arguments and objections. See Edmond v. State, 116 S.W.3d 110, 115

(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). As previously discussed, the

trial court would not have erred in overruling either objection.       Accordingly,

appellant has failed to meet the first prong of the Strickland test.

      Appellant’s argument that his counsel’s failure to object to his punishment

on Eighth Amendment grounds is equivalent to the denial of counsel altogether,

and that, therefore, prejudice can be legally presumed, is equally unavailing. The

Strickland analysis does not apply when prejudice is “presumed.” See United

States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984). If a defendant

can demonstrate that his counsel “entirely fail[ed] to subject the prosecution’s case

to meaningful adversarial testing,” such that there was a constructive denial of the

assistance of counsel altogether, then prejudice is legally presumed. See Cannon v.

State, 252 S.W.3d 342, 349–50 (Tex. Crim. App. 2008) (citing Cronic, 466 U.S. at

658–59, 104 S. Ct. 2039, 2046–47); see also Bell v. Cone, 535 U.S. 685, 696–97,



                                           13
122 S. Ct. 1843, 1851 (2002) (noting that, under Cronic, defense counsel’s failure

to test prosecution’s case must be “complete” before prejudice is presumed).

      Here, appellant’s counsel participated in all aspects of the punishment

hearing, including making objections, cross-examining the State’s witness,

eliciting testimony from appellant, and making a closing statement. As such, the

record does not reflect that appellant’s counsel failed to subject the State’s case to

“meaningful adversarial testing.” Compare Cannon, 252 S.W.3d at 350–52

(holding defendant was constructively denied his right to effective assistance of

counsel when his counsel refused to participate in jury selection, enter plea for his

client, make opening or closing statement, cross-examine any of State’s witnesses,

make any objections, offer any defense, request any special jury instructions, or

offer any evidence or argument with respect to punishment).

      We overrule appellant’s first point of error.

                                    Conclusion

      We affirm the trial court’s judgment.



                                              Jim Sharp
                                              Justice


Panel consists of Justices Keyes, Sharp, and Huddle.

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



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