No. 14- 15 -00258- CR In the Court of Appeals For the Fourteenth District of Texas At Houston  No. 1389665 In the 263rd District Court Of Harris County, Texas  T OMMIE R

AY L IMBRICK Appellant V. T HE S TATE OF T EXAS Appellee  STA TE’S APPELLATE BRIEF 

D EVON A

NDERSON District Attorney Harris County, Texas
A BBIE M ILES State Bar No: 24072240 Assistant District Attorney Harris County, Texas
S TUART T ALLICHET Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 Tel.: 713/755-5826 FAX No.: 713/755-5809 ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT ACCEPTED 14-15-00258-CR FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS 11/17/2015 11:49:46 AM CHRISTOPHER PRINE

CLERKi STATEMENT REGARDING ORAL ARGUMENT
Pursuant to T EX
. R. A PP
. P. 9.4(g) and T EX
. R. A PP
. P. 39.1 , the State requests oral argument only if oral argument is requested by the appellant.

IDENTIFICATION OF THE PARTIES
Pursuant to T EX
. R. A PP
. P. 38.2( a)(1)(A) , a complete list of the names of all interested parties is provided below. Complainant, victim, or aggrieved party: Chelby Walker
Counsel for the State:
Devon Anderson

 District Attorney of Harris County
Abbie Miles

 Assistant District Attorney on appeal
Stuart Tallichet

 Assistant District Attorneys at trial Appellant or criminal defendant: Tommie Ray Limbrick Counsel for Appellant: Sharon E. Slopis

 Counsel on appeal George “William” Tennant Jr. & Dani Bradberry

 Counsel at trial Trial Judge: Hon. Jim Wallace

 Presiding Judgeii TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT....................................i
IDENTIFICATION OF THE PARTIES...................................................i
INDEX OF AUTHORITIES...............................................................iii
STATE MENT OF THE CASE..............................................................1
STATEMENT OF T HE FACTS.............................................................1
SUMMARY OF THE ARGUMENT........................................................ .2
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED Trial counsel was not render ineffective assistance of counsel because appe llant cannot overcome the presumption of reasonably competent representation in light of the silent record. Additionally, trial counsel was not deficient for failing to file a sworn motion for community supervision because a sworn motion for community supe rvision is not required when seeking comm unity supervision from a judge. Also, trial counsel was not deficient for objecting to the ten year sentence as cruel and unusual punishment because the sentence was at the low end of the range of punishment for the of

fense, and was warranted based on the facts of the
case........................ ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... . 4 A ppellant ’s claim that his sentence of ten years in prison constitutes cruel and unusual punishment has not preserved this point of error for appellate review because he neither objected in the trial court at the time sentence was pronounced, nor raised the issue in a post

- trial motion. For this reason alone, appellant’s point of error should be overruled. If this Court chooses to address the merits of appellant’s second po int of error, t he sentence of ten years in prison did not constitute cruel and unusual punishment because it was within the range of punishment for the offense which appellant pled guilty to , and was warranted considering the facts of the case.......... 13
CONCLUSION.........

..................... ................................................ 20
CERTIFICATE OF SERVICE.............................................................

. 21iii INDEX OF AUTHORITIES Cases Arriaga v. State , 335 S.W.3d 331 (Tex. App.

— Houston [14 th Dist.] 2010, pet. ref’d) (mem. op., not designated for publication)

................................ ................................ .............................. 19 Atkins v. Virginia , 536 U.S. 304 (2002)

................................ ................................ ................................ ........... 16 Baldr idge v. State , 77 S.W.3d 890 (Tex.App.

— Houston [14 th Dist.] 2002, pet. ref’d).

............................ 19 Beyince v. State , 954 S.W.2d 878 (Tex. App.

-- Houston [14th Dist.] 1997, no pet.)

.............................. 10 Bingham v. State , 915 S.W.2d 9 (Tex. Crim. App. 1994 )

................................ ................................ .............. 6 Bone v. State , 77 S.W.3d 828 (Tex. Crim. App. 2002)

................................ ................................ ............ 6 Burns v. State , 122 S.W.3d 434 (Tex. App.

-- Houston [1st Dist.] 2003, pet. ref’d)

............................... 8 Cannon v. State , 668 S.W.2d 401 (Tex. Crim. App. 1984)

................................ ................................ .......... 6 Cardenas v. State , 30 S.W.3d 384 (Tex. Crim. App 2000)

................................ ................................ ........... 13 Chapman v. State , 859 S.W.2d 509 (Tex. App.

— Houston [1 st Dist.] 1993)

................................ ............. 14 Charles v. State , 146 S.W.3d 204 (Tex. Crim. App. 2004)

................................ ................................ .......... 6 Cruz v. State , 838 S.W.2d 682 (Tex. App.

— Houston [14 th Dist.] 1992, pet ref’d)

........................... 15 Davis v. State , 930 S.W.2d 765 (Tex. App.

— Houston [1st Dist.] 1996, pet. ref’d)

............................. 7 Diamond v. State , 419 S.W.3d 435 (Tex. App.

— Beau mont, 2012, no pet.)

................................ ............. 18 Downs v. State , 244 S.W.3d 511 (Tex. App.

-- Fort Worth 2007, pet. ref’d)

................................ ............ 8 Ellison v. State , S .W.3d 714 (Tex. Crim. App. 2 006)

................................ ................................ .............. 10 Gamble v. State , 916 S.W.2d 92 (Tex. App.

— Houston [1st Dist.] 1996, no pet)

................................ .... 7 Gavin v. State, 404 S.W.3d 597 (Tex. App.

-- Houston [1st Dist.] 2010, no pet.).

.............................. 15iv

George v. State , No.03

- 05

- 00415

- CR, 2007 WL 1451995 (Tex. App.

— Austin 2007, no pet.)

.......... 10 Goodspeed v. State , 187 S.W.3d 390 (Tex. Crim. App. 2005 )

................................ ................................ .......... 7 Hollin v. State , 227 S.W.3d 117 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref’d)

........................... 14 Huerta v. State , 359 S.W.3d 887 (Tex. App.

-- Houston [14th Dist.] 20 12, no pet.)

................................ 7 Huynh v. State , 833 S.W.2d 636 (Tex. App.

— Houston [14 th Dist.] 1992, no pet.)

............................. 11 Jackson v. State , 877 S.W.2d 768 (Tex. Crim. App. 1994)

................................ ................................ .......... 7 Jagaroo v. State , 180 S.W.3d 793 (Tex. App.

— Houston [14 th Dist.] 2005, pet. ref’).

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

................................ ................................ .......... 7 Louisiana ex rel. Francis v. Resweber , 329 U.S. 459 (1947).

................................ ................................ ................................ .......... 15 Mata v. State , 226 S.W.3d 425 (Tex. Crim. App. 2007)

................................ ................................ ...... 7 , 8 McCarty v. State , 227 S.W.3d 415 (Tex. App.

-- Texarkana 2007) , aff'd, 257 S.W.3d 238 (Tex. Crim. App. 2008)

................................ ................................ ................................ ......................... 10 McFarland v. State , 928 S.W.2d 482 (Tex. Crim. App. 1996)

................................ ................................ .......... 6 Nicholas v. State , 56 S.W.3d 760 (Tex. App.

— Houston [14th Dist.] 2001, pet. ref’d).

.......................... 14 Peacock v. State , No. 14

- 00

- 00875

- CR, 2001 WL 931135 (Tex. App.

— Houston [14 Dist.] 2001, no pet.)

................................ ................................ ................................ ................................ ..... 19 Quintana v. State , 777 S.W.2d 474 (Tex. App.

— Corpus Christi 1989, pet. ref’d)

................................ ... 15 Ramos v. State , 45 S.W.3d 305 (Tex. App.

-- Fort Worth 2001, pet. ref’d)

................................ .............. 8 Rezac v. State , 782 S.W.2d 869 (Tex. Crim. App. 1990)

................................ ................................ ........ 14 Roper v. Simmons , 543 U.S. 551 (2005).

................................ ................................ ................................ .......... 15 Ruiz v. State , No. 05

- 01

- 01176

- CR, 2002 WL 981911 (Tex. App.

— Dallas May 14, 2002, pet. dism’d) (mem. op., not designated for publication).

................................ .................... 11v

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

................................ ................................ .......... 6 Safari v. State , 961 S.W.2d 437 (Tex. App.

— Houston [1st D ist.] 1997, pe t. ref’d )

............................. 7 Samuel v. State , 477 S.W.2d 611 (Tex

. Crim

. App. 1972 )

................................ ................................ .. 15, 18 Solis v. State , 9 45 S.W.2d 300 (Tex. App.

— Houston [1st Dist.] 1997, pet. ref’d)

........................... 14 Steward v. LaGrand

, 526 U.S. 115, 119 S.Ct. 1019, 143 L.Ed.2d 196 (1999)

................................ ................ 14 Strickland v. Washington , 104 S.Ct. 2052 (1984)

................................ ................................ ................................ ...... 5 , 6 Thompson v. State , 9 S.W.3d 808 (Tex. Crim. App. 1999)

................................ ................................ .......... 5, 6 Toney v. Stat

e , 3 S.W.3d 199 (Tex. App.

— Houston [14th Dist.] 1999, pet. ref’d)

............................... 7 Vaughn v. State , 931 S.W.2d 564 (Te x. Crim. App. 1 996)

. ................................ ................................ ....... 12 Washington v. State , No. 01

- 13

- 00369

- CR, 2014 WL 4658476 (Tex. App.

– Houston [1 st . Dist.] 2014, no pet.) (mem. op. , not designated for publication)

................................ ........................... 11 Wert v. State , 383 S.W.3d 747 (Tex. App.

-- Houst on [14th Dist.] 2012, no pet. )

................................ 8 Young v. State , 425 S.W.3d 469 (Tex. App.

— Houston [1 s t . Dist.] 2012, pet. ref’d)

........................... 18 Statutes T EX
. P ENAL C ODE A NN
. § 29.03( b) and § 1 2.32 (West 2013)

................................ ........ 18 T EX
. C ODE OF C RIM
. P ROC
. art. 42.12 § 4(d)(3) (West 2015

................................ .......... 10 T EX
. C ODE OF C RIM
. P ROC
. art. 42.12 § 5(a) (West 2015)

................................ .......... 9, 10 Rules T EX
. R. A PP
. P. 9.4(g)

................................ ................................ ................................ .............. i T EX
. R. A PP
. P ROC
. 33.1(a)

................................ ................................ ............................ 13, 15 T EX
. R. A PP
. P ROC
. 38.1(1)( i)

................................ ................................ .............................. 12 T EX
. R. A PP
. P. 38.2( a)(1)(A)

................................ ................................ ................................ .. i T EX
. R. A PP
. P. 39.1

................................ ................................ ................................ ................. iTO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE Appellant was charged with aggravated sexual assault of a child under fourteen years of age (C.R. 5). Appellant entered a plea of guilty to the offense, and the case was reset for a punishment hearing (C.R. 71

- 72, 85; R.R.II 3). After a punishment hearing, the trial court sentenced appellant to confinement for 10 years in the
Institutional Division of the Texas Department of Criminal Justice (C.R. 85 ; R.R.IV 4). A written notice of appeal was timely filed ( C.R. 82, 88, C.R. Supp.II 3 ). No
motion for new trial was filed.

       

      

STATEMENT OF FACTS The State challeng es all factual assertions in appel lant’s brief and presents the following account of the facts. Appellant was charged with aggravated sexual assault of a child under fourteen (C.R. 5). On February 13, 2015, appellant entered a plea of guilty to the offense, and the case was reset for a p unishment hearing (C.R. 71

- 72, 85; R.R.II 3). A punishment hearing was held on February 16, 2015 (R.R.III). At the hearing Jennifer Ferrigno, behavioral specialist, testified for the State (R.R.III 6). She worked for Cy

- Fair Independent School District at the time of the offense (R.R.III 7, C.R. 5). The complainant, Chelby Walker, told Ms. Ferrigno that she had been “ sexually assaulted”2

by her stepfather, “Tommy” (R.R.III 9

- 10 ). She elaborated that “he had invited her to lay in bed with him. And that he had kissed on her and then he had stuck his hand in her pants.” (R.R.III 10). This made Chelby uncomfortable (R.R.III 11). Chelby started to cry as she recounted what happened to her (R.R.III 11). Ms. Ferrigno called CPS and Chelby’s parents (R.R.III 11).
Ch elby’s father, Gregory Walker, went to the apartment where Chelby lived
with her mother and Tomm ie Limbrick, appellant, and then contacted the police (R.R.III 19). Chelby’s mom called appellant and asked “him to come [home] and set the record straight in f

ront of [everyone]” including Chelby (R.R.III 20). Appellant arrived while Mr. Walker still there (R.R.III 19). Appellant apologized “for everything that just happened” (R.R.III 20). Police officers went inside the apartment and came out with appellant in handcuffs (R.R.III 22 , 37 ). Deputy Thomas and Deputy Shriver , of the Harris County Sheriff’s Office, responded to the scene on May 2, 2013 (R.R.III 32

- 34). Deputy Shriver interviewed Chelby while Deputy Thomas spoke with appellant about t he accusations th at had
been made against him (R.R.III 36). Appellant said that he “kissed her” and “fondled her” (R.R.III 36). He expressed remorse and his desire to handle it “within the family” (R.R.III 36). Appellant was arrested (R.R.III 37).
On the day of the incide nt Chelby was wearing her mom’s pink shirt (R.R.III
48 , 61 ). Appellant called her “Kayle” which is her mom’s nickname, and Chelby did not correct him (R.R.III 48

- 50). Appellant then “pu t his hands inside [her] pants”3

(R.R.III 49). Chelby stated that she we nt into the bedroom that morning because her “real dad...told [her] that he would love [her] more if [she] got [her] step dad to do something he wasn’t supposed to do” (R.R.III 51 , 55 ). When appellant realized who Chelby was he appeared apologetic and cried (R.R.III 53). Chelby claimed that her real dad continued to ask her to do things “to put [her] step dad in jail” after the incident (R.R.III 52). Chelby’s mom, Dakayle Limbrick AKA Claudette Walker, testified that she wanted appellant to come home so they could be “a complete family” and that she did not believe that appellant intentionally sexually assaulted Chelby (R.R.III 60, 63). Ms. Limbrick testified that appellant had sleep apnea, and had an unusual sleep schedule because he was a truck driver (R.R.I II 64). Ms. Limbrick described appellant as an “honest man” who was “very respectful of law enforcement” (R.R.III 64). Appellant apologized to everyone for what he did (R.R.III 65). Ms. Limbrick married appellant ten days after he sexuall y assault Chelby ( R.R.III 66).

       

      

SUMMARY OF THE ARGUMENT
Trial counsel was not render ineffective assistance of counsel because appellant cannot overcome the presumption of reasonably competent representation in light of the silent record. Additionally, tri al counsel was not deficient for failing to file a sworn motion for community supervision because a sworn motion for4

community supervision is not required when seeking community supervision from the trial judge. Also, trial counsel was not deficient for ob jecting to the ten year sentence as cruel and unusual punishment because the sentence was at the low end of the range of punishment for the offense, and was warranted based on the facts of the case.

A ppellant ’s claim that his sentence of ten years in prison constitut es cruel and unusual punishment has not preserved this point of error for appellate review because he neither objected in the trial court at the time sentence was pronounced, nor raised the issue in a post

- trial motion. For this reason alone, appellant’s p oint of error should be overruled. If this Court chooses to address the merits of appellant’s second po int of error, the sentence of ten years in prison did not constitute cruel and unusual punishment because it was within the range of punishment for the o ffense which appellant pled guilty to , and was warranted considering the facts of the case.

       

      

REPLY TO FIRST POINT OF ERROR Appellant claims that his trial counsel was deficient was not filing a motion for community supervision and failing to object to the ten year sentence as cruel and unusual punishment. However, appellant cannot overcome the presumption of reasonably competent representation in light of t he silent record. Additionally, trial counsel was not deficient for failing to file a sworn motion for community supervision because a sworn motion for community supervision is not required when seeking5

community supervision from the trial judge. Also, trial counsel was not deficient for objecting to the ten year sentence as cruel and unus ual punishment because the sentence was at the low range of punishment for the offense, and was warranted
based on the facts of the case. Analysis In order to prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) counsel’s per formance was deficient; and (2) this deficiency was so prejudicial that it rendered the trial unfair. Strickland v. Washington , 466 U.S. 668, 677

- 78, 104 S.Ct. 2052, 2064 (1984)

. The first prong of the Strickland standard requires the defendant to show that counsel’s performance fell below an objective standard of
reasonableness. Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999 )

. Regarding the second prong, the defendant must show a reas onable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id

. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. I d . at 813. An appellate court examines the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id . An appellate court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland , 466 U.S. at 688. Judicial scrutiny of counsel’s performance must be highly deferential. Id . A defendant carries the burden of proving his claim of ineffective assistan ce of counsel by a6

preponderance of the evidence. Cannon v. State , 668 S.W.2d 401, 403 (Tex. Crim. App.
1984 ) . A defendant must overcome the strong presumption that an attorney’s actions

we re sound trial strategy. Strickland , 466 U.S. at 688 . Furthermore, a claim of ineffective assistance of counsel must be firmly supported by the record. McFarland v.
State , 928 S.W .2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds , Bingham v.
State , 915 S.W.2d 9 (Tex. Crim. App. 1994 )

. The record on direct appeal usually will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision making

as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002 ) . Rarely will the trial record contain sufficient information to per mit a reviewing court to fairly evaluate the merits of such a serious allegation. Id . In the majority of cases, the record on direct appeal is simply underdeveloped and cannot adequately reflect the alleged failings of trial counsel. Id

. (quoting Thompson , 9 S.W.3d at 813

- 14 ). Trial counsel should ordinarily be afforded an opportunity to explain her actions before being denounced as ineffective. Rylander v. State , 101 S.W.3d 107, 110

- 11 (Tex. Crim. App. 2003) ; see also Charles v. State , 146 S.W.3d 204, 210 (Tex. Crim. App. 2004) (person with most, if not exclusive, knowledge of the salient facts regarding an ineffectiveness claim is usually defendant’s trial counsel). Absent such an opportunity, an appellate court should not find deficient performance unless th e7

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 )

. When the recor d is silent as to counsel’s trial strategy, an appellate court may not speculate about why cou nsel acted as he did. Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) ; Toney v. State , 3 S.W.3d 199, 210 (Tex. App.

— Houston [14th Dist.] 1999, pet. ref’d) ; Safari v. State , 961 S.W.2d 437, 445 (Tex. App.

— Houston [1st Dist.] 1997, pet. ref’d, untimely filed) ; Davis v. State , 930 S.W.2d 765, 769 (Tex. App.

— Houston [1st Dist.] 1996, pet. ref’d) ; Gamble v. State , 916 S.W.2d 92, 93 (Tex. App.

— Houston [1st Dist.] 1996, no pet .) . Without testimony from trial counsel, an appellate court must presume that counse l had a plausible rea son for his actions. Lopez v. State , 343 S.W.3d 137, 142

- 43 (Tex. Crim. App. 2011) ; Mata v. State , 226 S.W.3d 425, 430

- 31 (Tex. Crim. App. 2007) ; Safari , 961 S.W.2d at 445. In the absence of such testimony,

an appellate court cannot meaningfully address claims of ineffectiveness. Davis , 930
S.W.2d at 769

. 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 counsel.
Huerta v. State , 359 S.W.3d 887, 891 (Tex. App.

-- Houston [14th Dist.] 2012, no pet .)

. It is not sufficient that the defendant show, with the benefit of hindsight, that his counsel’s actions or omissions during trial were merely of q uestionable competence.
Id . Rather, to show that counsel’s acts or omissions were outside the range of8

professionally competent assistance, the defendant must show that counsel’s errors were so serious that she was not functioning as counsel. Id

. Followi ng his conviction, appellant did not file a motion for new trial. As such, appellant’s trial counsel has not ha d the opportunity to explain his trial strategy or
how his actions and inactions were possibly consistent with such a strategy. Accordingly, the record is silent regarding counsel’s strategy. In such a circumstance, it must be presumed that counsel had a pl ausible strategic reason for his manner of representation. Mata , 226 S.W.3d at 430

- 31 . Facing a silent record, it would be inappropriate for a reviewing court to speculate that counsel’s representation of appellant was not guided by sou nd trial strategy. Given the silent record, appellant has failed to overcome the presumption that trial counsel’s challenged actions and omissions were sound trial strategy. For this reason alone, appellant’s allegation s of ineffectiveness for failing t o file a sworn motion for community supervision and object to the ten year sentence as cruel and unusual punishment should be defeated. Wert v. State , 383 S.W.3d 747, 757

- 58 (Tex. App.

-- Houston [14th Dist.] 2012, no pet.) ; Downs v. State , 244 S.W.3d 511, 515 (Tex. App.

-- Fort Worth 2007, pet. ref’d) ; Burns v. State , 122 S.W.3d 434, 436

- 37 (Tex. App.

-- Houston [1st Dist.] 2003, pet. ref’d) ; see also Ramos v. State , 45 S.W.3d 305, 311

- 12 (Tex. App.

-- Fort Worth 2001, pet. ref’d) (rejecting defendant’s eighteen allegations of ineffectiveness solely because record was silent regarding trial counsel’s strategy). If this Court chooses to address the merits of appellant’s claim, trial counsel was not9

deficient for failing to file a sworn motion for community supervision and failing to object to the ten year sentence as cruel and unusual p unishment. Regarding the motion for community supervision, appellant argues “that trial counsel’s failure to file a motion for probation was per se ineffective assistance of
counsel ....and that trial counsel’s failure to file a sworn motion for probation co uld not possibly be considered ‘trial strategy’... ” 1 A judge is permitted to grant deferred adjudication community supervision when “in the judge’s opinion the best interest of society and the defendant will be served ...after receiving a plea of guilty or nolo
contendre , hearing the evidence, and finding that it substantiates the defendant’s guilty, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.” T EX
. C ODE OF C RIM
. P ROC
. art. 42.12 § 5(a) ( West 2015). Appellant filed an election requesting the trial court assess his punishment (C.R. 69). Appellant signed admon ishments that the range of punishment for the
offense for which he was pleading guilty to was “a term of life or any term of not more than 99 years or less than 5 years in the Institutional Division of the Texas Department of Criminal Justice, and in addit ion, a fine not to exceed $10,000 may be assessed.” (C.R. 73). Appellant did not file a sworn motion for community supervision.

1 Appellant’s brief at 16.10

When a jury assesses punishment, and a defendant seeks community supervision , for that defendant to be eligible to receive comm unity supervision, he must file a sworn motion that he is eligible to receive community supervision. T EX
. C ODE OF C RIM
. P ROC
. art. 42.12 § 4(d)(3) (West 2015 ); See McCarty v. State, 227 S.W.3d 415, 418 (Tex. App.

- - Texarkana 2007) , aff'd, 257 S.W.3d 238 (Tex. Crim. App. 2008) (defendant is eligible for jury

- recommended community supervision only if he
files a sw orn motion, and proves he has no prior felony convictions); Beyince v. State, 954 S.W.2d 878, 879

- 80 (Tex. App.

- - Houston [14th Dist.] 1997, no pet.) ( § 4(e) of
article 42.12 governing time to file applicati on for probation is mandatory); S ee also
Ellison v. St

ate, 201 S .W.3d 714, 718 (Tex

. Crim. App. 006) (acknowledging that under § 4 of article 42.12 , jury must make two determinati ons: “(1) the truth or falsity of the information in the defendant's motion, and (2) whether to recommend that the defendant be placed on community supervision instead of serving a term of confinement”). This is not the case when a defendant pleads guilty and asks the judge to assess his punishment. When a defendant pleads guilty to the charged offense, and asks the judge to defer a finding of guilt and place him on community supervision, it is not required
that the defendant file a sworn motion for commun ity supervision

. T EX
. C ODE OF
C RIM
. P ROC
. art. 42.12 § 5(a) (West 2015) (lacking reference to motion or “sworn motion” of any kind); See also George v. State , No. 03

- 05

- 00415

- CR, 2007 WL 1451995, at *4 (Tex. App.

—

Austin 2007, no pet.) (holding that “[a]n application for probation11

is only required when punishment is assessed by a jury...[and thus c]ounsel’s performance cannot be considered deficient based on his failure to file an unneces sary motion”). Trial counsel was not deficient for failing to file a sworn motion for community supervision be cause it was not necessary for appellant to have filed a sworn motion to receive deferred adjudication community supervision under the facts and procedural history of the present case. See Huynh v. State , 833 S.W.2d 636, 638 (Tex. App.

— Houston [14 th Dist.] 1992, no pet.); See also Washington v. State , No. 01

- 13

- 00369

- CR, 2014 WL 4658476, at *4 (Tex. App.

– Houston [1 st . Dist.] 2014, no pet.) (mem. op., not designated for publication) ( holding that “because punishment ultimately was not assessed by a jury, trial counsel was not ineffective for failing to file a sworn application”); See also Ruiz v. State , No. 05

- 01

- 01176

- CR, 2002 WL 981911, at *1 (Tex. Ap p.

— Dallas May 14, 2002, pet. dism’d) (mem. op., not designated for publication). Accordingly, appellant ’s first allegation of deficient performance should be overruled. Appellant then claims that his tri al counsel was deficient for “[failing] to object to [] appellant’s sentence, 10 years in prison for [a]ggravated [s]exual [a]ssault of a child under 14, as cruel and unusual punishment under the Eighth Amendment” because failure to make said objection wai ves the error on appeal. 2 However, before this Court can conclude that trial counsel was deficient for failing to make an objection, appellant must demonstrate that the trial court would have erred by

2 Appellant’s brief at 18

- 19.12

overruling the objection. See Vaughn v. State , 931 S.W. 2d 564, 566 (Tex. Crim. App. 1996) (per curiam). Appellant cannot make this showing because his sentence lies within the range of punishment. See Jagaroo v. State , 180 S.W.3d 793, 800 (Tex. App.

— Houston [14 th Dist.] 2005, pet. ref’). It is not ineffective assistance of counsel to abstain from making frivolous arguments and objections. Id

. Appellant’s claim that trial counsel was deficient for failing to obj ect to his ten year sentence should be
overruled. Appellant then claims that there is a reasonable probability that, but for trial counsel’s errors, a reasonable probability exists that the outcome would have been
different. 3 Appellant does not state how the outcome would have been different if
trial counsel would have file d a sworn motion for community supervision and objected to the ten year sentence as cruel and unusual. Appellant does not argue that he would have received a lesser sentence or community supervision. Appellant, instead, argues that he “received ineffective assistance of counsel at his sentencing hearing [and t]his Court should reverse appellant’s convictions, and the case for further proceedings.” 4 A ppellant’s allegations that trial couns el’s deficiencies prejudiced him are inadequately brief because he makes no assertion of how the
outcome would have been different

. See T EX
. R. A PP
. P ROC
. 38.1(1)( i)( requiri ng appellant’s brief to “contain a clear and concise argument for the contentions made,

3 Appellant’s brief at 20

- 21

. 4 Appellant’s brief at 21.13

with appropriate citations to authorities”) ; See also Cardenas v. State , 30 S.W.3d 384, 393 (Tex. Crim. App 2000) (appellate court has no obligation to consider inadequately briefed points of error). A ppellant’s point of error should be overruled.

REPLY TO SECOND POINT OF ERROR
Appellan t claims that his sentence constitutes cruel and unusual punishment because it was in the best interests of the child, Chelby, that he receive community supervision. However, appellant has not preserved this point of error for appellate
review because he n either objected in the trial court at the time sentence was pronounced, nor raised the issue in a post

- trial motion. For this reason alone, appellant’s point of error should be overruled. If this Court chooses to address the merits of appellant’s second po int of error, the sentence of ten years in prison did not constitute cruel and unusual punishment because it was within the range of punishment for the offense which appellant pled guilty to , and was warranted considering the facts of the case.

Preservati on of Error The Texas Rules of Appellate Procedure require “[a]s a prerequisite to presenting a complaint for appellate review, the record must show that...the complaint was made to the trial court by timely request, objection or motion....” T EX
. R. A PP
. P ROC
. 33.1(a)

. Even a constitutional or statutory right can be waived by failing14

to object. See Hollin v. State , 227 S.W.3d 117, 123 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref’d

)( citing Rhoades v. State , 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).
In Rhoades v. State, the Court held that a defendant may not claim cruel and unusual p unishment on appeal when he failed to object in the trial court. Rhoades , 934
S.W.2d at 120. “Without an objection, any error in this regard has been forfeited.” Id

. ( citing Rezac v. State , 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) ). Similarly, the Fourteenth Court of Appeals concluded in Nicholas v. State that the defendant failed to preserve error wh en he neither objected to the sentences, “as violating his constitutional rights at the time they were announced” nor “[raised] these arguments in a post

- trial motion.” Nicholas v. State , 56 S.W.3d 760, 768 (Tex. App.

— Houston [14th Dist.] 2001, pet. ref’d) (concluding that defendant waived claim that one concurrent and five consecutive sentences imposed for three counts of aggravated
sexual assault of child and three counts of indecency with a child were cruel and
unusual under both federal and state consti tutions, when he did not raise them in trial court)

. Appellan t has waived his constitutional claim that his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment

. Id . ( citing Solis
v. State , 945 S.W.2d 300, 301 (Tex. App.

— Houston [1st Dist.] 1997, pet. ref’d) ; Steward
v. LaGrand

, 526 U.S. 115, 119, 119 S.Ct. 1019, 143 L.Ed.2d 196 (1999) ); See Chapman v.
State , 859 S.W.2d 509, 515 (Tex. App.

— Houston [1 st Dist.] 1993), rev’d on other grounds , 921 S.W.2d 694 (Tex. Crim. App. 1996) (failing to object that punishment was cruel and unusual waives error on appeal); Cruz v. State , 838 S.W.2d 682, 687 (Tex. App.

—15

Houston [14 th Dist.] 1992, pet ref’ d); Quintana v. State , 777 S.W.2d 474, 479 (Tex. App.

— Corpus Christi 1989, pet. ref’d) (holding that when the defendant does not object to cru el and unusual punishment at trial or in a motion for new trial the argument on appeal is waived). In this case, appellant failed to object at the time of sentencing, and he did not file a motion for new trial claiming that the sentence violated his const itutional right to be free from cruel and unusual punishment. Appellant failed to preserve error in his second point of error because he did not present it in the trial court. See T EX
. R.
A PP
. P. 33.1(a) ; see also Rhoades , 934 S.W.2d at 120; Nicholas , 56 S.W.3d at 768. For t h is reason alone, a ppellant’s point of error should be overruled. Analysis The Eighth Amendment of the United States Constitution provides that “[e]xcess ive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” U.S. Const. amend. VIII. The Eighth Amendment has been incorporated to apply to the States through the operation of the Due Process
Clause of the Fourt eenth Amendment. Louisiana ex rel. Francis v. Resweber , 329 U.S. 459, 463 (1947). The prohibition agains t cruel and unusual punishment is measured by the “evolving standards of decency that mark the progress of a maturing society.” Roper v.
Simmons , 543 U.S. 551, 561 (2005). Punishment assessed within the statutory limits is generally not cruel and
unusual punishment. Samuel v. State , 477 S.W.2d 611, 614 (Tex

. Crim

. App. 1972) ;16

Gavin , 404 S.W.3d at 606. Only in exceedingly rare cases will a sentence within the statutory range be considered cruel and unusual. Solem v. Helm , 463 U.S 277, 288

- 90 (1983); See also Atkins v. Virginia , 536 U.S. 304, 312 (2002) (when analyzing claim of cruel and unusual punishment, the appropriateness of a particular punishment for a particular offense is best viewed by the legislation enacted). Appellant argues that his sentenc e was cruel and unusual because “it would have been in the best interest of the child to place him, appellant, on probation, rather that (sic) have the child live with the knowledge that she and her biological father

were responsible for sending appellant to prison for something he did not intentionally and knowingly do , based upon the complainant’s set up of her stepfather, which she did not explain to the school counselor, ..., and the story the complainant told the Childre n’s Assessment Center, which was contrived by the complainant’s biological father.” 5 This is a distortion of the facts of this cas e. During the punishment hearing Chelby did testify that her biological father wanted her to do something to get appellant in trouble, and that on the morning of the incident she was wearing her mom’s shirt and appellant called her by the nickname he used for Chelby’s mom (R.R.III 48

- 50, 51, 55). Chelby’s mom also testified that appellant had sleep apnea and an unusual sleep patt er n due to being a truck driver (R.R.III 64). This effort at mitigation was all thrown to the wayside when the trial judge questioned appellant about these issues. A ppellant admitted that he knew h e was in bed with

5 Appellant’s brief at 24

.17

Chelby when he put his hands down her pan ts (R.R.III 76

- 77). Appellant admitted that what he did was intentional, and was “stupid” and the result of appellant’s lack of control of his own hormones (R.R.III 77). Appellant admitted that he was guilty of
the offense and that the sleep apnea was just an excuse (R.R.III 77). Appellant “knew who it was, [] knew how old she was, [] knew what [he] was doing was wrong; but [he] couldn’t control [himself] and [he] did it anyway.” (R.R.III 77

- 78). Regarding the best interests of Chelby, the trial court clea rly prioritized this issue when assessing appellant’s punishment. The trial judge asked the State if sending appellant to prison would do more damage than good to Chelby (R.R.III 79). The State responded that sending appellant to prison would not do more d amage to Chelby than good (R.R.III 79). Chelby’ s mom and appellant’s wife, Dakayle Limbrick AKA Claudette Walker, was not supportive of Chelby. She married appellant t en days after he sexually assaulted Chelby (R.R.III 66). When Chelby outcried, Ms. Limbri ck responded in disbelief and arranged for Chelby to be “[confronted]” by her attacker hours after the assault (R.R.III 60, 63, 65

- 66). Ms. Limbrick made excuses for appellant’s actions as a result of sleep apnea or an unusual sleep schedule (R.R.III 64). Despite appellant’s guilty plea, Ms. Limbrick stated that she did not believe that appellant intentionally sexually assaulted Chelby (R.R.III 60). Ms. Limbrick had a history of keeping Chelby away from Mr. Walker, her biological father, (R.R.III 41

- 42). Ms . Limbrick also allowed appellant to live in the same house with her two sons despite the fact that appellant had been charged with sexually assaulting Chelby18

(R.R.III 41

- 42). Ms. Limbrick expressed her wishes for appellant to come home so they could be a “complete family” (R.R.III 60, 63). The trial court clearly balanced the best interests of Chelby and came to the conclusions that sending appellant to prison was in her best interests because putting appellant in prison was the only way to protect Chelby from appellant when it was obvious that Ms. Limbrick was wholly unwilling to protect Chelby. Appellant was charged with aggravated sexual assault (C.R. 5). Appellant invited Chelby to lay in bed with him, and he then started kissing her and put his hand
in her pants (R.R.III 10). Chelby had an abrasion on her genital area (R.R.IV 14, 27). During the medical examination, Chelby specified that appellant “stuck his fingers up in [her] vagina” (R.RIV 21). The facts of the case, alone, warrant a sentence of ten years in prison. Additionally, the ten year sentence was within the statutory limits, and thus was
not cruel and unusual. See T EX
. P ENAL C ODE A NN
. § 22.021 ( a ) (1)(B) and (e) and § 12.32 (West 2015 ); Samuel , 477 S.W.2d at 614. Appellant’s sentence was not grossly disproportionate. See Diamond v. State , 419 S.W.3d 435, 441 (Tex. App.

— Beaumont, 2012, no pet.) (holding that sentence of 99 years f or aggravated robbery after the defendant pled “true” to violating the terms of his probation was not cruel and unusual); Young v. State , 425 S.W.3d 469, 474 (Tex. App.

— Houston [1 st . Dist.] 2012, pet. ref’d) (holding that a sentence of twenty

- five years fo r aggravated sexual assault of a child does not constitute cruel and unusual punishment) ; Peacock v. State , No. 14

- 00

-19

00875

- CR, 2001 WL 931135, at * 1

- 2 (Tex. App.

— Houston [14 Dist.] 2001, no pet.) (mem. op., not designated for publication) (holding that s entence of thirty years did not constitute cruel and unusual punishment) ; See also Arriaga v. State , 335 S.W.3d 331, 336 (Tex. App.

— Houston [14 th Dist.] 2010, pet. ref’d) (mem. op., not designated for publication) (holding that “[t]he trial court’s sentenc e of life imprisonment is not grossly disproportionate to appellant’s commission of aggravated sexual assault of a child less than 14 years of age.”)

. “It has long been recognized that if the punishment assessed is within the range of punishment establis hed by the Legislature under its constitutional authority, there is no violation of the state constitutional provisions against cruel and unusual punishment.” Baldridge v. State , 77 S.W.3d 890, 893 (Tex. App.

— Houston [14 th Dist.] 2002, pet. ref’d). Since appellant’s ten year sentence falls within the statutory range , his punishment is not cruel and unusual. Further the facts of the present case warrant a sentence of ten years in prison. Appellant’s point of error should be overruled.

       

      20 CONCLUSION It is respectfully submitted that all things are regula r and that the conviction
should be affirmed.
D EVON A NDERSON District Attorney Harris County, Texas

/s/ Abbie Miles A BBIE M ILES Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755

- 5826 TBC No. 24072240 Miles_abbie@dao.hctx.net Curry_Alan@daohctx.net

CERTIFICATE OF COMPLIANCE The undersigned attorney certifies that this computer

- gen erated docu ment has
a word count of 6130 words, based upon the representation provided by the word processing program that was used to create the document. /s/ Abbie Miles
Abbie Miles Assistant District Attorney21 CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been mailed to the appellant’s attorney at the following address on November 17, 2015 :
Sharon E. Slopis Attorney at Law P.O. Box 980803 Houston, Texas 77098

/s/ Abbie Miles A BBIE M ILES Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755

- 5826 TBC No. 024072240 Miles_abbie@dao.hctx.net Curry_Alan@dao.hctx.net

Date: November 17, 2015