Affirmed and Memorandum Opinion filed April 14, 2015.

In The 

Fourteenth Court of Appeals 

NO. 14-14-00469-CR

ARREINIUS JARLYN WATSON, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 263rd District Court 

Harris County, Texas 

Trial Court Cause No. 1198355 

M E M O R A N D U M O P I N I O N 

Appellant Arreinius Jarlyn Watson appeals his conviction for aggravated 

robbery of an elderly or disabled individual. See Tex. Penal Code Ann. § 

29.03(a)(3) (West 2011). Appellant contends (1) he received ineffective assistance 

of counsel; and (2) the punishment assessed violated the Eighth Amendment 

prohibition against cruel and unusual punishment. We affirm. 
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BACKGROUND

Appellant pleaded guilty to aggravated robbery of an elderly individual 

without an agreed recommendation as to punishment. The trial court deferred 

adjudication of guilt and, on July 23, 2009, placed appellant on deferred 

adjudication community supervision for a period of five years. On November 3, 

2010, the State filed a motion to adjudicate guilt asserting that appellant violated 

certain conditions of his community supervision. On February 14, 2011, the State 

filed a motion to dismiss on the grounds that appellant was to serve 100 days in the 

Harris County Jail and remain on community supervision after release. 

On June 29, 2012, the State filed a second motion to adjudicate guilt. That 

motion was amended three times; the third amended motion was filed January 13, 

2014. On April 16, 2014, appellant entered a plea of true to the State’s third 

amended motion. Appellant signed a stipulation of evidence in which he stipulated 

that he had been served with a copy of the State’s motion, consented to the 

introduction of evidence, and waived his right against self-incrimination. Appellant 

judicially confessed to the offense, expressed that he understood the range of 

punishment was five to 99 years or life, and up to a $10,000 fine, entered a plea of 

true to the State’s motion, and waived any further time to prepare for trial.1

 The 

trial court subsequently assessed appellant’s sentence at confinement for twenty 

years in the Institutional Division of the Texas Department of Criminal Justice. 

INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM

In his first issue appellant contends he received ineffective assistance of 

counsel because counsel failed to request a court reporter to record appellant’s plea 

 

1 Appellant also agreed to waive any right to appeal. Appellant’s waiver of the right to 

appeal is not effective because there was no agreed recommendation as to punishment. See 

Washington v. State, 363 S.W.3d 589, 589–90 (Tex. Crim. App. 2012).
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and failed to object to the twenty-year sentence as cruel and unusual. 

To prevail on an ineffective-assistance claim, appellant must show that: (1) 

his trial counsel’s performance fell below an objective standard of reasonableness; 

and (2) there is a reasonable probability that, but for the error, the result of the 

proceeding would have been different. Wiggins v. Smith, 539 U.S. 510, 521 (2003); 

Garza v. State, 213 S.W.3d 338, 347–48 (Tex. Crim. App. 2007). Appellate review 

of trial counsel’s representation is highly deferential and presumes that counsel’s 

actions fell within the wide range of reasonable and professional assistance. Garza, 

213 S.W.3d at 348. 

If the reasons for counsel’s conduct at trial do not appear in the record and it 

is at least possible that the conduct could have been grounded in legitimate trial 

strategy, we will defer to counsel’s decisions and deny relief on an ineffectiveassistance claim on direct appeal. Id. To warrant reversal where trial counsel has 

not been afforded an opportunity to explain those reasons, the challenged conduct 

must be so outrageous that no competent attorney would have engaged in it. 

Roberts v. State, 220 S.W.3d 521, 533–34 (Tex. Crim. App. 2007), cert. denied, — 

U.S. —, 128 S.Ct. 282, 169 L.Ed.2d 206 (2007). A vague, inarticulate sense that 

counsel could have provided a better defense is not a legal basis for finding 

counsel constitutionally deficient. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. 

App. 2002). 

In this case, appellant argues that he received ineffective assistance because 

his counsel did not request a court reporter to record his plea of true to the State’s 

motion to adjudicate guilt. Without showing harm, the failure to request 

recordation of a plea hearing is not per se ineffective assistance of counsel. Rivera 

v. State, 981 S.W.2d 336, 339 (Tex. App.—Houston [14th Dist.] 1998, no pet.); see

also Oliva v. State, 942 S.W.2d 727, 733 (Tex. App.—Houston [14th Dist.] 1997), 
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pet. dism’d as improvidently granted, 991 S.W.2d 803 (Tex. Crim. App. 1998) 

(declining to adopt a rule that failure to request a record amounts to ineffective 

assistance as a matter of law). Appellant did not make this complaint in his motion 

for new trial, nor has he filed a habeas corpus petition. 

The record is silent as to the reasoning and strategy behind counsel’s action 

or inaction; accordingly, appellant has not rebutted the strong presumption that 

counsel exercised reasonable professional judgment. See Thompson, 9 S.W.3d at 

814. Appellant did not develop a record with regard to why counsel did not request 

a court reporter to transcribe the plea hearing, or whether counsel objected to 

appellant’s sentence as cruel and unusual. Whatever trial counsel’s reasons for 

pursuing the chosen course, in the absence of a record identifying these reasons, 

we must presume they were made deliberately as part of sound trial strategy. 

Because we are unable to conclude that trial counsel’s performance fell below an 

objective standard without evidence in the record, we conclude that appellant has 

failed to meet the first prong of the Strickland test as to this complaint. See id.

Moreover, as discussed below, appellant has failed to show an objection to his 

punishment as cruel and unusual would have been successful. We overrule 

appellant’s first issue. 

CRUEL-AND-UNUSUAL-PUNISHMENT CLAIM

In his second issue appellant contends he received cruel and unusual 

punishment where the record reflects that he received a twenty-year sentence for 

violating his probation. 

Appellant recognizes that the failure to raise an objection to his punishment 

at trial fails to preserve error. See Tex R. App. P. 33.1; see also Mercado v. State, 

718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Noland v. State, 264 S.W.3d 144, 

151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that when 
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appellant failed to object to his sentence at the punishment hearing or to complain 

about it in his motion for new trial, he failed to preserve his Eighth Amendment 

complaint that the punishment assessed was “grossly disproportionate and 

oppressive”).

In this case, no record was made of the plea hearing or sentencing hearing; 

therefore, we do not have a record to determine whether appellant objected to his 

sentence. A contemporaneous objection, however, is not the only method available 

to appellant to preserve error on a cruel-and-unusual-punishment complaint. See 

Battle v. State, 348 S.W.3d 29, 31 (Tex. App.—Houston [14th Dist.] 2011, no pet.) 

(holding that appellant failed to preserve error that sentence was cruel or unusual 

by failing to raise the issue at trial or in a motion for new trial). The record reflects 

that appellant failed to raise his claim of cruel and unusual punishment in a postjudgment motion. Because appellant did not present a specific objection to his

sentence or otherwise obtain an adverse ruling on the complaint he now voices on 

appeal, appellant presents nothing for this court’s review. Tex. R. App. P. 33.1.

In arguing that his sentence constituted cruel and unusual punishment, 

appellant argues that “nothing in the rules precludes taking notice of fundamental 

errors affecting substantial rights although they were not brought to the attention of 

the trial court.” In Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim. App. 

1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. 

App. 1997), the Court of Criminal Appeals of Texas determined that the general 

preservation requirement does not apply to all claims. The high court separated the 

rights of the defendant into three categories: 

 The first category of rights are those that are “widely 

considered so fundamental to the proper functioning of our 

adjudicatory process . . . that they cannot be forfeited . . . by 

inaction alone.” These are considered “absolute rights.”
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 The second category of rights is comprised of rights that are 

“not forfeitable”—they cannot be surrendered by mere 

inaction, but are “waivable” if the waiver is affirmatively, 

plainly, freely, and intelligently made. The trial judge has an 

independent duty to implement these rights absent any request 

unless there is an effective express waiver. 

 Finally, the third category of rights are “forfeitable” and must 

be requested by the litigant. Many rights of the criminal 

defendant, including some constitutional rights, are in this 

category and can be forfeited by inaction. 

Marin, 851 S.W.2d at 279–80. 

Rule 33.1’s preservation requirements do not apply to rights falling within 

the first two categories. Id. In Garza v. State, the Court of Criminal Appeals 

determined that a juvenile does not waive a complaint that mandatory punishment 

of life in prison without the possibility of parole violated the Eighth Amendment 

by failing to voice that complaint in the trial court. See 435 S.W.3d 258, 261 (Tex. 

Crim. App. 2014). The Court of Criminal Appeals noted that Eighth Amendment 

issues generally are forfeited if not raised in the trial court. See id. at 259. But, the 

high court created an exception to the preservation-of-error requirement for 

“substantive status-based or individualized-sentencing claims under the Eighth 

Amendment . . . embraced by Miller.”2

See id. at 262. Appellant does not assert a 

substantive status-based or individual-sentencing claim embraced by Miller. 

Rather, appellant urges that he was disproportionately sentenced for violating the 

conditions of community supervision. Accordingly, we reject appellant’s 

contention that this complaint constituted a complaint of fundamental error. See 

Cerna v. State, 441 S.W.3d 860, 867–68 (Tex. App.—Houston [14th Dist.] 2014, 

 

2 Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2464 (2012) (holding that imposing a 

mandatory sentence of life without the possibility of parole on individuals who commit capital 

murder before the age of eighteen violates the Eighth Amendment).
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pet. ref’d) (rejecting complaint based on failure to preserve error in the trial court 

when appellant sought extension of Miller).

Waiver notwithstanding, appellant has not shown that his sentence was cruel 

and unusual or grossly disproportionate to the offense for which he was convicted. 

Although a sentence may be within the range permitted by statute, it may 

nonetheless run afoul of the Eighth Amendment prohibition against cruel and usual 

punishment. Solem v. Helm, 463 U.S. 277, 290 (1983). A sentence is grossly 

disproportionate to a crime only when an objective comparison of the gravity of 

the offense against the severity of the sentence reveals the sentence to be extreme. 

Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th Dist.] 2006, pet. 

ref’d); Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, 

pet. ref’d). In its proportionality analysis, a reviewing court must first review 

whether the sentence is grossly disproportionate to the offense. Hicks, 15 S.W.3d 

at 632. If the reviewing court determines the sentence to be grossly 

disproportionate to the crime committed, then it compares (1) sentences for similar 

crimes in the jurisdiction and (2) sentences for the same crime in other 

jurisdictions. Id. The constitutional principal of the Eighth Amendment is 

tempered, however, by the corollary proposition that the determination of prison 

sentences is a legislative prerogative that is primarily within the province of the 

legislatures, not the courts. Rummel v. Estelle, 445 U.S. 263, 274–76 (1980).

Appellant argues he was disproportionately sentenced for violating the 

conditions of community supervision, and the trial court unfairly sentenced him to 

twenty years’ confinement because the “new law violation” that occurred while 

appellant was on community supervision was evading arrest with a motor vehicle. 

However, the trial court did not sentence appellant to twenty years’ confinement 

for failing to comply with the conditions of community supervision; the trial court 
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sentenced appellant for aggravated robbery of an elderly individual, a first-degree 

felony. See Tex. Penal Code Ann. §§ 12.32 & 29.03. The punishment range for a 

first-degree felony is confinement for five to 99 years or life, and a fine not to 

exceed $10,000. When appellant entered his plea of true he acknowledged the 

possible range of punishment. 

We first determine whether “an objective comparison of the gravity of the 

offense against the severity of the sentence reveals the sentence to be extreme.” 

Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, 

pet. ref’d) (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., 

plurality op.)). Only if we are able to infer that the sentence is grossly 

disproportionate will we then compare the challenged sentence against the 

sentences of other offenders in the same jurisdiction and the sentences imposed for 

the same crime in other jurisdictions. Baldridge, 77 S.W.3d at 893; see also Solem, 

463 U.S. at 292. 

Appellant has failed to show that his twenty-year sentence is grossly 

disproportionate to the first-degree felony offense of aggravated robbery of an 

elderly individual. The legislature has imposed a five-to-99-year range of 

punishment for the offense, and a twenty-year sentence, near the low end of the 

sentencing range, is not grossly disproportionate to the offense in this case. See 

Diamond v. State, 419 S.W.3d 435, 440–41 (Tex. App.—Beaumont 2012, no pet.) 

(ninety-nine-year sentence for aggravated robbery not disproportionate); Jacoby v. 

State, 227 S.W.3d 128, 132 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) 

(concurrent 40-year sentences for two counts of aggravated robbery with a deadly 

weapon were not grossly disproportionate). Because appellant has not shown that 

his twenty-year sentence is grossly disproportionate to the offense, we need not 

consider the remaining Solem factors. See Harris v. State, 204 S.W.3d 19, 29 (Tex. 
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App.—Houston [14th Dist.] 2006, pet. ref’d).We overrule appellant’s second issue. 

We affirm the trial court’s judgment. 

 

 /s/ William J. Boyce 

 Justice 

Panel consists of Chief Justice Frost and Justices Boyce and McCally. 

Do Not Publish — Tex. R. App. P. 47.2(b).