Opinion issued September 30, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00989-CR

———————————

TRESTAN JEMAL PRESCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Case No. 1372308

MEMORANDUM OPINION

Trestan Prescott pleaded guilty, without an agreed recommendation as to 

punishment, to indecency with a child, a second-degree felony.1 The trial court 

sentenced Prescott to six years’ confinement. In three issues, Prescott alleges that 

 1 See TEX. PENAL CODE ANN. § 21.11 (West 2011).
2

(1) his sentence was grossly disproportionate to the offense, qualifying it as cruel 

and unusual punishment; (2) he received ineffective assistance of counsel at the 

sentencing phase of the trial; and (3) he is entitled to a new trial because his presentencing investigation report was not included in the appellate record.

We affirm.

Background

Trestan Prescott was indicted for the first-degree felony offense of 

aggravated sexual assault of a child.2 He pleaded guilty to the lesser offense of 

indecency with a child. The trial court ordered the preparation of a presentence 

investigation report, which was prepared and submitted to the trial court before 

Prescott was sentenced.

At the sentencing hearing, J. Braddock, the complainant’s mother, testified 

about Prescott’s relationship with her family. She testified that Prescott lived in the 

apartment above hers but spent a lot of time in her apartment. She allowed this 

because she wanted to help Prescott get out of his home environment, which she 

believed to include extensive drug use by Prescott’s family members. Additionally, 

Braddock testified that her boyfriend felt more comfortable leaving her and her

children at the apartment in the evenings to go to work if seventeen-year-old 

Prescott was there to protect the family. Braddock testified that she trusted Prescott 

 2 See TEX. PENAL CODE ANN. § 22.021(West Supp. 2014).
3

around her children, though she did not typically leave them alone with him. She 

described Prescott as “a really good friend of ours.” 

Braddock described what she witnessed when she found Prescott alone with 

her six-year-old daughter, Amy.3 Braddock stepped outside of her apartment that 

evening for a few minutes, leaving Prescott alone in the apartment with Amy and 

her eight-year-old brother. When she returned, she found the cushions of her couch 

pulled to the floor and covered with blankets. Prescott was lying next to Amy on 

the pallet with his hands inside Amy’s pajamas. Braddock began yelling at 

Prescott. He “jump[ed] up . . . off the floor and he ha[d] to fix . . . himself, his 

pants and what not.” Braddock ordered Prescott to leave the apartment. Amy told 

her mother that Prescott touched her in her “private” area and would not stop. 

Braddock called her boyfriend at work, and the two took Amy to the emergency 

room. The emergency room physician examined Amy and noted a hymenal 

abrasion.

Braddock testified that the incident strongly affected Amy. She became 

lethargic. She began to have trouble sleeping and would awaken screaming. She 

would not eat. She also began to fall behind in school. Teachers told Braddock that 

Amy was having difficulty focusing in class. 

 3 An alias will be used in place of the minor’s name. See TEX. R. APP. P. 9.10(a)(3).
4

During Braddock’s testimony, the prosecutor noted that the range of 

punishment was “probation all the way up to 20 years” and asked Braddock how 

she felt about the possibility of probation. She responded, “I feel like that wouldn’t 

be justice, that my baby deserves more than that. He needs to be put in prison and 

he needs to be—get some help.” Prescott did not object.

Other evidence at the sentencing hearing established that Prescott functions 

intellectually at an elementary-school level. He admitted, however, that he knew he 

was not supposed to “touch” children. He described his actions as “a bad mistake.”

Prescott requested that he be placed on probation. 

At the conclusion of the hearing, the trial court noted that he was 

“struggling” with whether to grant probation. Specifically, he noted Prescott’s 

young age, his impaired intellectual function, and the absence of any significant 

criminal history. Ultimately, he concluded that probation was not warranted:

I just can’t abide by or tolerate or have any part of allowing somebody 

to be on probation that touches a six-year-old little girl. I tried. I 

thought about it. . . . But when I watch that mom standing up here 

with tears in her eyes talking about her six-year-old little daughter, 

when it comes down to it, I just can’t do it.

The trial court sentenced Prescott to six years’ confinement. Prescott did not object 

to the sentence or request a new trial. 

Prescott timely appealed.
5

Cruel and Unusual Punishment

In his second issue, Prescott argues that his punishment constitutes cruel and 

unusual punishment in violation of the Eighth Amendment. See U.S. CONST.

amend. VIII. 

A defendant must object when his sentence is assessed or file a motion for 

new trial to preserve a complaint of cruel and unusual punishment. See TEX. R.

APP. P. 33.1(a); Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston 

[1st Dist.] 2007, pet. ref’d) (holding defendant failed to preserve Eighth 

Amendment complaint for appeal); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (holding that defendant’s failure to object that 

punishment was cruel and unusual waived error); Solis v. State, 945 S.W.2d 300,

301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding claim of cruel and 

unusual punishment could not be raised for first time on appeal).

Prescott did not object when his punishment was announced or move for a 

new trial. He argues that such actions were not required because the trial court 

committed “fundamental error” by sentencing him to six years’ confinement. The 

only authority Prescott provides for this argument is a citation to Rule 103(d) of 

the Rules of Evidence, which provides that notice may be taken of “fundamental 

errors.” TEX. R. EVID. 103(d). Prescott’s suggestion of fundamental error is 

inadequately briefed; therefore, he has waived his argument that cruel and unusual 
6

punishment constitutes fundamental error, asserted to avoid waiver of the issue 

based on a failure to object. TEX. R. APP. P. 38.1(i).

We nonetheless conclude that the trial court’s decision to impose a sentence 

on Prescott that fell within the applicable statutory punishment range was not 

fundamental error. See Young v. State, 425 S.W.3d 469, 474 (Tex. App.—Houston 

[1st Dist.] 2012, pet. ref’d) (concluding that sentence at lower end of statutory 

range not fundamental error); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—

Corpus Christi 2005, pet. ref’d) (holding that complaint of cruel and unusual 

punishment based on sentence that falls within statutory punishment range does not 

constitute fundamental error). Accordingly, Prescott was required to object when 

his sentence was assessed or file a motion for new trial to preserve for appeal his 

contention that he received cruel and unusual punishment. He failed to do so; 

therefore, the argument is waived.

We overrule Prescott’s second issue.

Ineffective Assistance of Counsel

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

counsel at the punishment hearing. Specifically, he alleges that his counsel was 

deficient by failing to (1) object that his sentence was cruel and unusual, 

(2) establish on the record that Prescott was eligible for probation, and (3) object to 
7

Braddock’s testimony that Prescott should go to prison instead of receiving 

probation. 

A. Standard of review

The standard of review for evaluating claims of ineffective assistance of 

counsel is set forth in Strickland v. Washington, which dictates that a defendant is 

entitled to “reasonably effective assistance.” 466 U.S. 668, 687, 104 S. Ct. 2052, 

2064 (1984). A defendant is not, however, ensured “errorless counsel or counsel 

whose competency is judged by hindsight.” Calderon v. State, 950 S.W.2d 121, 

126 (Tex. App.—El Paso 1997, no pet.).

There are two prongs to a Strickland analysis: a defendant must show that 

(1) counsel’s performance fell below an objective standard of reasonableness and 

(2) but for counsel’s unprofessional error, there is a reasonable probability that the 

result of the proceedings would have been different. 466 U.S. at 687–94; 

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

probability is a “probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694.

In reviewing counsel’s performance, we look to the totality of the 

representation to determine the effectiveness of counsel, indulging a strong 

presumption that counsel’s performance is within a wide range of reasonable 

professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475, 
8

482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. Prescott has the 

burden to establish both prongs of the Strickland test by a preponderance of the 

evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). A failure 

to make a showing under either prong defeats an ineffective-assistance claim. See 

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

Additionally, allegations of ineffectiveness of counsel must be firmly rooted 

in the record. Thompson, 9 S.W.3d at 814; Bone v. State, 77 S.W.3d 828, 833 & 

n.13 (Tex. Crim. App. 2002). When the record is silent, we may not speculate to 

find trial counsel ineffective. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. 

Crim. App. 2001). In the absence of evidence of counsel’s reasons for the 

challenged conduct, an appellate court commonly will assume a strategic 

motivation if any can possibly be imagined and will not conclude that the 

challenged conduct constitutes deficient performance unless the conduct was so 

outrageous that no competent attorney would have engaged in it. Id.

B. Failure to object that sentence was cruel and unusual punishment

Prescott alleges that his counsel rendered ineffective assistance by failing to 

object that his sentence constitutes cruel and unusual punishment. To prevail on 

this claim, Prescott must show that had his trial counsel objected, the trial court 

would have erred in overruling the objection. Vaughn v. State, 931 S.W.2d 564, 
9

566 (Tex. Crim. App. 1996); Jacoby v. State, 227 S.W.3d 128, 131 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d). 

The Eighth Amendment forbids only extreme sentences that are grossly 

disproportionate to their crimes. Solem v. Helm, 463 U.S. 277, 288, 103 S. Ct. 

3001, 3008 (1983); see also Noland, 264 S.W.3d at 151. Generally, punishments 

that fall within the statutory limits do not qualify as cruel and unusual. Young, 425 

S.W.3d at 474; Gavin v. State, 404 S.W.3d 597, 606 (Tex. App.—Houston [1st 

Dist.] 2010, no pet.). However, the Supreme Court has held that a sentence that is 

within the statutorily prescribed range may be found to have violated the Eighth 

Amendment. Solem, 463 U.S. at 291, 103 S. Ct. at 3009 (stating that “no penalty is 

per se constitutional”). The Court announced three objective factors to guide 

reviewing courts when evaluating proportionality: (1) the gravity of the offense 

and the harshness of the penalty; (2) the sentence imposed on other criminals in the 

same jurisdiction; and (3) the sentences imposed for commission of the same crime 

in other jurisdictions. Solem, 463 U.S. at 290, 103 S. Ct. at 3011. 

We first compare the gravity of the offense to the harshness of the penalty. 

Culton v. State, 95 S.W.3d 401, 403 (Tex. App.—Houston [1st Dist.] 2002, pet. 

ref’d). We judge the gravity of the offense in light of the harm caused or threatened 

to the victim or society and the culpability of the offender. Id. In comparing the 

gravity of the offense to the harshness of the penalty, we give deference to the trial 
10

courts to select an appropriate sentence within the applicable range. Solem, 463 

U.S. at 290, 103 S. Ct. at 3009. Only if the gravity of the offense is grossly 

disproportionate to the sentence do we consider the sentences imposed on other 

criminals or in other jurisdictions. Culton, 95 S.W.3d at 403; see Diaz-Galvan v. 

State, 942 S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) 

(noting that disproportionality must be extreme to meet standard).

Here, Prescott pleaded guilty to indecency with a child, which is a seconddegree felony and has a punishment range of two to 20 years. TEX. PENAL CODE 

ANN. § 21.11 (indecency with child); § 12.33 (second-degree felony punishment). 

The trial court sentenced Prescott to six years’ confinement—an amount that is in 

the lower half of the applicable statutory range. A six-year sentence is not extreme 

for the offense of indecency with a child that resulted in a physical injury to a sixyear-old child’s genital area and lingering emotional effects for the child and the 

family who trusted Prescott in their home. See Simpson v. State, 2000 WL 

1472720, at *2 (Tex. App.—Houston [14th Dist.] Oct. 5, 2000, pet. ref’d) (mem. 

op., not designated for publication) (holding that seven-year sentence for 

indecency with a child was not cruel and unusual punishment); cf. Dorsten v. State, 

Nos. 01-09-00500-CR, 01-09-00501-CR, 01-09-00527-CR, 01-09-00528-CR, 01-

09-00529-CR, 2011 WL 2623937, at *2 (Tex. App.—Houston [1st Dist.] June 30, 

2011, pet. ref’d) (mem. op., not designated for publication) (holding that trial court 
11

did not abuse its discretion by sentencing defendant to 10 years’ confinement for 

each count of indecency with a child). 

Further, Prescott presented no evidence on the remaining two Solem factors. 

There is nothing in the record relevant to the sentences imposed on others 

convicted in this jurisdiction or for similar crimes in other jurisdictions. See Solem, 

463 U.S. at 292, 103 S. Ct. at 3011. Accordingly, none of the three Solem factors 

support the conclusion that Prescott’s sentence was cruel or unusual. 

Because the trial court would not have erred by overruling an objection to 

Prescott’s six-year sentence as cruel and unusual punishment, counsel did not 

render ineffective assistance by failing to assert the objection. See Jacoby, 227 

S.W.3d at 131 (describing Eighth Amendment objection to sentence as “futile”

when punishment was not grossly disproportionate to severity of offense).

C. Failure to ask Prescott questions related to his probation eligibility

Prescott alleges that his counsel “did not specifically ask whether [he] had 

ever been convicted of a felony in this or any other state, or been granted felony 

probation in this or any other state.” According to Prescott, it was necessary for his 

counsel to ask him these questions on the record to establish that he was eligible 

for probation and for the trial court to consider probation as an available 

punishment option. To meet the second prong of Strickland to prevail on an 

ineffective-assistance claim based on this omission, Prescott must establish that his 
12

punishment would have been different if his attorney had established his eligibility 

for probation by asking these two questions. See Strickland, 466 U.S. at 694; Ex 

parte Cash, 178 S.W.3d 816, 818 (Tex. Crim. App. 2005). Prescott has not met 

this burden.

The trial court expressly stated at the conclusion of the sentencing hearing 

that he was considering granting Prescott probation but that he was “struggling” 

with whether he felt it was appropriate given Amy’s young age at the time of the 

offense. That statement demonstrates the trial court understood that Prescott met 

the requirements to be eligible for probation but ultimately determined that 

probation would not be granted. 

Given that the trial court actually considered granting probation, Prescott 

cannot demonstrate that he would have received a different sentence had his 

counsel asked him these two questions to confirm eligibility. Accordingly, Prescott 

cannot meet the second prong of Strickland to establish ineffective assistance of 

counsel.

D. Failure to object to Braddock’s testimony on probation versus prison

In his final ineffective-assistance argument, Prescott contends that his 

counsel should have objected when Braddock testified that Prescott should go to 

prison instead of receiving probation. 
13

In assessing Prescott’s claims, we apply a strong presumption that trial 

counsel was competent. Thompson, 9 S.W.3d at 813. We presume counsel’s 

actions and decisions were reasonably professional and were motivated by sound 

trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). 

Counsel must be free to choose not to assert an objection even if there is a legal 

basis for doing so. See Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d). Trial strategy may dictate that available 

objections remain unasserted.

The Court of Criminal Appeals has noted the rarity with which ineffective

assistance is found when the record is silent as to counsel’s trial strategy. See 

Thompson, 9 S.W.3d at 814; Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. 

Crim. App. 2000). On a silent record, this court can only find ineffective assistance

of counsel if the 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) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001)).

Prescott did not file a motion for new trial in this case; therefore, his counsel 

never testified about his trial strategy. There is no explanation why he failed to 

object to Braddock’s testimony. In the absence of testimony on the matter, it is 
14

difficult to meaningfully address Prescott’s claim. See Davis v. State, 930 S.W.2d 

765, 769 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). 

Even if Braddock’s testimony were inadmissible, trial counsel’s failure to 

object may have been part of a reasonable trial strategy. See Thomas, 886 S.W.2d 

at 392; see also Hill v. State, No. 03-09-00213-CR, 2010 WL 2540603, at *4–5 

(Tex. App.—Austin June 25, 2010, no pet.) (mem. op, not designated for 

publication) (holding that counsel did not render ineffective assistance when he 

failed to object to witness testimony asking for maximum sentence). Counsel 

possibly reasoned that asserting an objection to over-reaching testimony was less 

critical in the context of a sentence being assessed by a trial court instead of a jury. 

Counsel may have concluded that the benefits of pointing out to a trial court that a 

family member’s sentencing recommendation is irrelevant was outweighed by the 

possibility that interrupting the mother’s testimony would have been viewed 

negatively. 

Without any evidence in the record explaining counsel’s rationale, we 

assume a strategic motivation and conclude that counsel did not render ineffective 

assistance given that the failure to object was not so outrageous that no competent 

attorney would have done so. See Goodspeed, 187 S.W.3d at 392–93.
15

In sum, we conclude that Prescott has failed to establish that his counsel 

rendered ineffective assistance on any of the bases he asserts. We therefore 

overrule his first issue.

Pre-sentence Investigation Report in Appellate Record

In his third and final issue, Prescott contends that a reversal of his conviction 

is required and that we must remand for a new trial because the Presentence 

Investigation Report, which was an exhibit to the reporter’s record, was ordered to 

be included in the appellate record but has not been filed. 

The district clerk filed the exhibit in this Court on April 3, 2014. The exhibit 

was neither lost nor destroyed; therefore, the provision in Rule 34.6 mandating a 

new trial does not apply. TEX. R. APP. P. 34.6.

We overrule Prescott’s third issue.

Conclusion

Having overruled all three of Prescott’s issues, we affirm the trial court’s 

judgment.

Harvey Brown

Justice

Panel consists of Justices Massengale, Brown, and Huddle.

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