Affirmed and Memorandum Opinion filed August 21, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00119-CR

DAMON LEE DOZIER, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 122nd District Court 

Galveston County, Texas 

Trial Court Cause No. 16CR0278 

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

Appellant pleaded guilty to cruelty to a non-livestock animal and true to two 

enhancement paragraphs for prior felony offenses without an agreed recommendation 

from the State on punishment. After the trial on punishment, the trial court sentenced 

appellant to seven years’ incarceration. In two issues on appeal from his seven-year 

sentence, appellant complains that he received ineffective assistance of counsel by his 

trial attorney’s failure to (1) object to appellant’s sentence as cruel and unusual 

punishment in violation of the United States and Texas Constitutions; and (2) advocate 
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during closing argument for deferred adjudication or regular probation, or in the 

alternative, a specific, lenient, and proportionate prison sentence. We affirm. 

BACKGROUND

In mid-October 2015, appellant called the police from a Kroger’s grocery store 

and said someone was trying poison his dogs, Zeus and Zena. The officer, who 

responded to the call, said that appellant was intoxicated on drugs and the dogs “looked 

fine.” The officer drove appellant and the dogs back to appellant’s sister’s house. 

Two weeks later, on October 28, 2015, an individual accused Zeus of biting him. 

Officer Josh Henderson of the Galveston Police Department’s Animal Service Unit 

took Zeus from appellant and, following standard procedure, quarantined Zeus for ten 

days to observe him for rabies. Zena remained with appellant. 

At that time, appellant was staying at an apartment with a friend. Appellant had 

been depressed since Zeus was taken from him, and he was paranoid and believed that 

his friend was conspiring with others to take Zena from him. On November 3, 2015, 

appellant, who was intoxicated from Ecstasy and cocaine, left the apartment after he 

and his friend argued. Appellant took Zena with him. 

While appellant and Zena were walking, appellant believed they were being 

followed by someone driving a Honda Civic, which made him “more and more 

paranoid.” Appellant believed that the person in the car was going to wait until he fell 

asleep and then take Zena. Appellant “had it set in my mind that it wasn’t nobody 

going to take Zena from me . . . and I stabbed Zena.” Appellant tried to get Zena to 

come to him after he realized what he had done, but Zena ran away. Appellant pursued 

Zena for a couple of blocks but stopped and went to a store where he “paced back and 

forth on the sidewalk” and came off his high. Appellant did not attempt to locate Zena. 

Appellant returned to the apartment and told his friend that he had given away Zena. 

On November 5, 2015, Officer Henderson received a call regarding a deceased 
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dog on the porch of a house. Officer Henderson went to investigate and found that the 

dog was Zena and took her to Dr. Lea Fistein, a veterinarian, who performed a necropsy 

on Zena. 

Zena’s condition suggested that she had been dead for more than 24 hours. There 

was still food in Zena’s stomach, which meant that Zena was alive for some time after 

she was stabbed and before she died. 

The knife used to stab Zena was still in her body. Dr. Fistein described the knife 

as a dagger with hooks. The handle of the knife had bite marks and, therefore, it was 

“very possible” that Zena tried to pull the knife out of herself. Dr. Fistein was not able 

to remove the knife with her hand, but, instead, had to make an incision to remove it. 

In sum, Dr. Fistein stated that she “suspected that [Zena] died fairly miserably a day or 

two after being stabbed” and the stabbing caused unjustified or unwarranted pain and 

suffering. 

Appellant was arrested and charged with cruelty to a non-livestock animal. 

Appellant pleaded guilty to the charged offense and true to two felony enhancement 

paragraphs for assault of a family member and burglary of a habitation. Appellant was 

convicted of a second-degree felony as enhanced with a punishment range of two to 

twenty years’ incarceration and a fine up to $10,000. The trial court assessed 

punishment at seven years’ incarceration and no fine. 

Appellant does not appeal his conviction, but only challenges his seven-year 

sentence. Appellant claims that he received ineffective assistance of counsel because 

his trial attorney failed to (1) object to appellant’s sentence as cruel and unusual 

punishment in violation of the United States and Texas Constitutions; and (2) advocate 

during closing argument for deferred adjudication or regular probation, or in the 

alternative, a specific, lenient, and proportionate prison sentence. 
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STANDARD OF REVIEW

Both the United States and Texas Constitutions guarantee an accused the right 

to assistance of counsel. U.S. Const. amend. VI; Tex. Const. Art. I, § 10. The right to 

counsel necessarily includes the right to reasonably effective assistance of counsel. 

Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court 

has established a two-prong test to determine whether counsel is ineffective. Id. First, 

appellant must demonstrate counsel’s performance was deficient and not reasonably 

effective. Id. at 688–92. Second, appellant must demonstrate the deficient 

performance prejudiced the defense. Id. at 693. Essentially, appellant must show his 

counsel’s representation fell below an objective standard of reasonableness, based on 

prevailing professional norms, and there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

Id.; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). 

Judicial scrutiny of counsel’s performance must be highly deferential, and we 

are to indulge a strong presumption counsel was effective. Jackson v. State, 877 

S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel’s actions and decisions 

were reasonably professional and that they were motivated by sound trial strategy. Id. 

Moreover, it is appellant’s burden to rebut this presumption by a preponderance of the 

evidence, via evidence illustrating why trial counsel did what he did. Id. Any 

allegation of ineffectiveness must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 

808, 813 (Tex. Crim. App. 1999). 

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 representation. 

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). It is not sufficient 

for the appellant to show, with the benefit of hindsight, that his counsel’s actions or 
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omissions during trial were merely of questionable competence. Mata v. State, 226 

S.W.3d 425, 430 (Tex. Crim. App. 2007). Rather, to establish that the attorney’s acts 

or omissions were outside the range of professionally competent assistance, appellant 

“must show that counsel’s errors were so serious that he was not functioning as 

counsel.” Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995). We may not 

assume a lack of sound trial strategy on the part of trial counsel merely because we are 

unable to discern any particular strategic or tactical purpose in counsel’s trial 

presentation. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (“A 

vague, inarticulate sense that counsel could have provided a better defense is not a legal 

basis for finding counsel constitutionally incompetent. . . . [A] defendant must prove, 

by a preponderance of the evidence, that there is, in fact, no plausible professional 

reason for a specific act or omission.”). 

If appellant proves his counsel’s representation fell below an objective standard 

of reasonableness, he still must affirmatively prove prejudice as a result of those acts 

or omissions. Strickland, 466 U.S. at 693. If appellant fails to make the required 

showing of either deficient performance or prejudice, his claim fails. Rylander v. State, 

101 S.W.3d 107, 110 (Tex. Crim. App. 2003). 

ANALYSIS

Failure to Object to Sentence 

In his first issue, appellant contends that he received ineffective assistance of 

counsel when his trial attorney did not object to his sentence of seven years’ 

imprisonment as cruel and unusual punishment in violation of the United States and 

Texas Constitutions. 

The United States Constitution prohibits “cruel and unusual punishment,” while 

the Texas Constitution prohibits “cruel or unusual punishment.” U.S. Const. amend 

VIII; Tex. Const., art. I, § 13. However, there is no jurisprudential significance in the 
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different phrasing of these two phrases as they appear in the United States and Texas 

Constitutions. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997). 

The prohibition on cruel and unusual punishment requires that punishment be 

graduated and proportioned to the offense. State v. Simpson, 488 S.W.3d 318, 322 

(Tex. Crim. App. 2016). But this narrow principle does not require strict 

proportionality between the crime and the sentence. Id. “Rather, it forbids only 

extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. (quoting Ewing 

v. California, 538 U.S. 11, 23 (2003) (plurality op.)). 

To determine whether a sentence for a term of years is grossly disproportionate, 

a court must judge the severity of the sentence in light of (1) the harm caused or 

threatened to the victims; (2) the culpability of the offender; and (3) the offender’s prior 

adjudicated and unadjudicated offenses. Id. at 323. Only in the rare case in which this 

threshold comparison leads to an inference of gross proportionality will a court then 

compare the defendant’s sentence with sentences received by other offenders in the 

same jurisdiction and with the sentences imposed for the same crime in other 

jurisdictions. Id. Punishment assessed within the statutory limits, including 

punishment enhanced in accordance with a habitual-offender statute, is not excessive, 

cruel, or unusual. Id. 

The range of punishment for a second-degree felony offense is imprisonment for 

a term of not more than 20 years or less than 2 years and a fine not to exceed $10,000. 

See Tex. Penal Code Ann. § 12.33. 

Appellant’s sentence of seven years’ incarceration with no fine assessed is at the 

low end of the range of punishment for a second-degree felony.1 The stabbing of Zena 

was lethal and she suffered in great pain for some time while she was dying. Appellant 

 

1 Accordingly, there is no inference of disproportionality that would justify comparing 

appellant’s sentence to those imposed on other offenders in the same jurisdiction or with the sentences 

imposed for the same crime in other jurisdictions. See Simpson, 488 S.W.3d at 323.
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pled guilty to the offense and acted alone. Moreover, appellant had an extensive 

criminal history, which included (1) a conviction for theft; (2) three convictions for 

assault of a family member; (3) two convictions for possession of a controlled 

substance; and (4) a conviction for burglary of a habitation. Appellant’s sentence does 

not constitute cruel and unusual punishment. 

“To establish ineffective assistance of counsel based on a failure to object, 

appellant must demonstrate that the trial court would have committed harmful error in 

overruling the objection if trial counsel had objected.” DeLeon v. State, 322 S.W.3d 

375, 381 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Appellant cannot 

demonstrate that the trial court would have erred in overruling any objection to the 

seven-year sentence. See Jagaroo v. State, 180 S.W.3d 793, 801 (Tex. App.—Houston 

[14th Dist.] 2005, pet. ref’d) (explaining that the appellant must show that the trial court 

would have erred in overruling counsel’s objection to the punishment as cruel and 

unusual before the court could conclude counsel was ineffective for failure to make 

such an objection). “It is not ineffective assistance of counsel to forego making 

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

App.—Houston [14th Dist.] 2002, pet. ref’d). Therefore, appellant has not satisfied 

the first prong of Strickland by failing to establish that trial counsel’s representation 

fell below the objective standard of reasonableness by not objecting to appellant’s 

seven-year sentence as cruel and unusual punishment. We overrule appellant’s first 

issue. 

Failure to Advocate 

In his second issue, appellant asserts that he received ineffective assistance of 

counsel because his trial attorney did not advocate during closing argument for deferred 

adjudication or regular probation, or in the alternative, a specific, lenient, and 

proportionate prison sentence. We do not have a record showing defense counsel’s 
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reasons for not arguing for community supervision or a more lenient sentence. Without 

such record, appellant cannot meet his burden to rebut the presumption by a 

preponderance of the evidence that his trial counsel’s actions and decisions were 

reasonably professional and were motivated by sound trial strategy. See Jackson, 877 

S.W.2d at 771. 

In any event, during his closing argument, appellant’s trial attorney argued that 

appellant had had “mental problems for some time” and pointed out that appellant had 

been diagnosed with bipolar disorder since he had been in jail and prescribed 

medication for his condition. Counsel further argued that appellant had shown remorse 

for harming and killing Zena and was “very upset and weeping” when he saw pictures 

of her. 

Appellant has not demonstrated that his trial counsel’s performance was 

deficient, nor that any errors “were so serious that he was not functioning as counsel.” 

See Patrick, 906 S.W.2d at 495. Having failed to establish that trial counsel’s 

representation fell below the objective standard of reasonableness, appellant has not 

satisfied the first Strickland prong. We overrule appellant’s second issue. 

Having overruled both of appellant’s issues, we affirm the trial court’s judgment. 

 

 /s/ Martha Hill Jamison

 Justice 

Panel consists of Justices Boyce, Jamison, and Brown. 

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