NUMBER 13-22-00440-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG

 

JOSHUA POWELL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 347th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION 

Before Justices Tijerina, Silva, and Peña 

Memorandum Opinion by Justice Silva

Appellant Joshua Powell was charged with attempted capital murder, a first-degree 

felony. See TEX. PENAL CODE ANN. §§ 19.03, 12.31, 12.32(a), 15.01(d). Powell pleaded 

guilty pursuant to an open plea, and following a jury trial on punishment, a jury assessed 

life imprisonment. By a single issue, Powell asserts his sentence is grossly 
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disproportionate and in violation of the Eighth and Fourteenth Amendment. See U.S.

CONST. amends. VIII, XIV. We affirm.

I. BACKGROUND

On August 4, 2021, following complaints of a possible domestic disturbance, 

Corpus Christi Police Department Officer Manuel Dominguez was dispatched to an 

apartment where Powell resided with his mother Olga Robles, his girlfriend Annabelle 

Uballe, and their three young children. Robles greeted Officer Dominguez and notified

him that Powell had retreated to his bedroom, which Powell shared with Uballe and their 

children.

According to Uballe, while Officer Dominguez was outside speaking to Robles, 

Powell retrieved his .22 caliber pistol from a nearby dresser drawer and told her “if a cop 

came in . . . he would shoot.” Officer Dominguez knocked on the bedroom door, 

identifying himself and requesting to speak with Powell. Shortly thereafter, the door 

opened, Powell removed his gun from his waistband, and began shooting. Uballe grabbed 

their three children and shielded them on the floor.

Powell shot Officer Dominguez a total of eleven times, striking Officer Dominguez’s 

face, arm, chest, and back of the head. Officer Dominguez testified that after he was shot, 

he stumbled towards the kitchen, where he collapsed. As Officer Dominguez attempted 

to “crawl out” of the residence, Powell followed him. “I was thinking maybe he would try 

to run or something to that effect. But he followed me and kept on shooting me and 

shooting me,” testified Officer Dominguez. At one point, Powell began hitting Officer 

Dominguez with the gun itself. The entire exchange was captured on Officer Dominguez’s 
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body cam—including periods of time which Officer Dominguez had no recollection of, 

such as, radioing for backup and advising dispatch that he had been shot. Police arrived 

to find Officer Dominguez in the living room, bleeding profusely; his right eye was bulging 

from its socket. Powell fled and was later apprehended. 

Prior to trial, Powell acknowledged that he understood that the range of 

punishment for the offense of attempted capital murder is confinement for no less than 

five years and no more than ninety-nine years or life. Having acknowledged this, Powell 

pleaded guilty to attempted capital murder. The jury assessed punishment at life, and no

objection related to excessive or disproportionate sentencing was raised. This appeal

followed.

II. PUNISHMENT

An allegation of excessive or disproportionate punishment is a legal claim 

“embodied in the Constitution’s ban on cruel and unusual punishment” and based on a 

“narrow principle that does not require strict proportionality between the crime and the 

sentence.” State v. Simpson, 488 S.W.3d 318, 322–24 (Tex. Crim. App. 2016) (citing 

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)); see U.S.

CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, 

nor cruel and unusual punishments inflicted.”); see also Meadoux v. State, 325 S.W.3d 

189, 193 (Tex. Crim. App. 2010) (acknowledging that the Eighth Amendment is applicable 

to the states by virtue of the Fourteenth Amendment (citing Robinson v. California, 370 

U.S. 660, 666–67 (1962))). A successful challenge to proportionality is exceedingly rare 

and requires a finding of “gross disproportionality.” Simpson, 488 S.W.3d at 322–23 
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(citing Lockyer v. Andrade, 538 U.S. 63, 73 (2003)); Trevino v. State, 174 S.W.3d 925, 

928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d).

However, to preserve for appellate review a complaint that a sentence is grossly 

disproportionate or cruel and unusual, a defendant must present to the trial court a “timely 

request, objection, or motion” stating the specific grounds for the ruling desired. TEX. R.

APP. P. 33.1(a); see Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (“It is 

well settled that almost every right, constitutional and statutory, may be waived by the 

failure to object.”); Toledo v. State, 519 S.W.3d 273, 284 (Tex. App.—Houston [1st Dist.] 

2017, pet. ref’d) (concluding defendant had failed to preserve disproportionatesentencing complaint); see also Ware v. State, No. 05-22-00303-CR, 2023 WL 3070938, 

at *1 (Tex. App.—Dallas Apr. 25, 2023, no pet.) (mem. op., not designated for publication)

(concluding same where appellant was convicted to a term of life imprisonment for a 

nonviolent offense). 

At no time prior to this appeal did Powell argue that the sentence imposed was 

disproportionate to the offense charged or in violation of his constitutional rights. 1

Accordingly, Powell failed to preserve his complaint for review. See TEX. R. APP. P. 

33.1(a); Trevino, 174 S.W.3d at 928; see generally Wood v. State, 560 S.W.3d 162, 168 

1 During the pendency of this appeal, Powell filed a pro se letter entitled “Motion to Abate the 

Appeal for an Out of Time Motion for New Trial.” However, Powell is represented by counsel on appeal, 

and he is not entitled to hybrid representation. See Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex. 

Crim. App. 2004) (reaffirming appellant does not have a right to hybrid representation on appeal); see also 

Benson v. State, No. 13-19-00519-CR, 2021 WL 4202150, at *4 (Tex. App.—Corpus Christi–Edinburg Sept. 

16, 2021, pet. ref’d) (mem. op., not designated for publication) (same). Therefore, we do not address his 

pro se motion. See Ex parte Bohannan, 350 S.W.3d 116, n.1 (Tex. Crim. App. 2011) (“We have received 

numerous documents from applicant himself, but applicant is represented by counsel and is not entitled to 

hybrid representation. . . . Because applicant is represented by counsel, we disregard his numerous pro se

submissions and take no action on them.”) (citations omitted).
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(Tex. Crim. App. 2018) (“Appellant’s life sentence, which falls within the punishment range 

for attempted capital murder, is not an illegal sentence.”); Cisneros v. State, 622 S.W.3d 

511, 521 (Tex. App.—Corpus Christi–Edinburg 2021, no pet.) (holding appellant’s 

consecutive ninety-nine-year prison sentences for continuous sexual abuse did not 

constitute cruel and unusual punishment). We overrule Powell’s sole issue.

III. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA

 Justice 

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

22nd day of June, 2023.