ACCEPTED 14-15-00258-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 11/17/2015 11:49:46 AM CHRISTOPHER PRINE CLERK
No. 14-15-00258-CR In the FILED IN Court of Appeals 14th COURT OF APPEALS HOUSTON, TEXAS For the 11/17/2015 11:49:46 AM Fourteenth District of Texas CHRISTOPHER A. PRINE At Houston Clerk No. 1389665 In the 263rd District Court Of Harris County, Texas TOMMIE RAY LIMBRICK Appellant V. THE STATE OF TEXAS Appellee STATE’S APPELLATE BRIEF
DEVON ANDERSON District Attorney Harris County, Texas
ABBIE MILES State Bar No: 24072240 Assistant District Attorney Harris County, Texas
STUART TALLICHET 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 STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests
oral argument only if oral argument is requested by the appellant.
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. 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 Judge
i TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT…………………………...…i
IDENTIFICATION OF THE PARTIES…………………………………….……..i
INDEX OF AUTHORITIES………………………………………………………iii
STATEMENT OF THE CASE……………………………………………………..1
STATEMENT OF THE FACTS…………………………………………………....1
SUMMARY OF THE ARGUMENT……………………………………………......2
REPLY TO APPELLANT’S FIRST ISSUE PRESENTED 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, 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 seeking community 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 offense, and was warranted based on the facts of the case……………………………………………………………………………...…...4 Appellant’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 point 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……….13
CONCLUSION……………………………………………………………………20
CERTIFICATE OF SERVICE…………………………………………....……….21
ii INDEX OF AUTHORITIES Cases Arriaga v. State, 335 S.W.3d 331 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (mem. op., not designated for publication) .............................................................................................. 19 Atkins v. Virginia, 536 U.S. 304 (2002)........................................................................................................... 16 Baldridge v. State, 77 S.W.3d 890 (Tex.App.—Houston [14th 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 [1st 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 [14th 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.—Beaumont, 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. 2006) .............................................................................. 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.). .............................. 15
iii 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.] 2012, no pet.)................................ 7 Huynh v. State, 833 S.W.2d 636 (Tex. App.—Houston [14th 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 [14th 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). .................................................... 11
iv 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 Dist.] 1997, pet. ref’d) ............................. 7 Samuel v. State, 477 S.W.2d 611 (Tex. Crim. App. 1972) .................................................................. 15, 18 Solis v. State, 945 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. State, 3 S.W.3d 199 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d)............................... 7 Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996). ....................................................................... 12 Washington v. State, No. 01-13-00369-CR, 2014 WL 4658476 (Tex. App.–Houston [1st. Dist.] 2014, no pet.) (mem. op., not designated for publication)........................................................... 11 Wert v. State, 383 S.W.3d 747 (Tex. App.--Houston [14th Dist.] 2012, no pet.)................................ 8 Young v. State, 425 S.W.3d 469 (Tex. App.—Houston [1st. Dist.] 2012, pet. ref’d) ........................... 18 Statutes TEX. PENAL CODE ANN. § 29.03(b) and § 12.32 (West 2013) ........................................ 18 TEX. CODE OF CRIM. PROC. art. 42.12 § 4(d)(3) (West 2015.......................................... 10 TEX. CODE OF CRIM. PROC. art. 42.12 § 5(a) (West 2015) .......................................... 9, 10 Rules TEX. R. APP. P. 9.4(g) .............................................................................................................. i TEX. R. APP. PROC. 33.1(a) ............................................................................................ 13, 15 TEX. R. APP. PROC. 38.1(1)(i) .............................................................................................. 12 TEX. R. APP. P. 38.2(a)(1)(A) .................................................................................................. i TEX. R. APP. P. 39.1 ................................................................................................................. i
v TO 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 challenges all factual assertions in appellant’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 punishment 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” 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).
Chelby’s father, Gregory Walker, went to the apartment where Chelby lived
with her mother and Tommie 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 front 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 the accusations that 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 incident 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 “put his hands inside [her] pants”
2 (R.R.III 49). Chelby stated that she went 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.III 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 sexually 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, trial counsel was not deficient for failing to
file a sworn motion for community supervision because a sworn motion for
3 community supervision is not required when seeking community supervision from the
trial 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 offense, and was warranted based on the facts of the case.
Appellant’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 point
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.
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 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 supervision is not required when seeking
4 community supervision from the trial 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 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 performance 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 reasonable 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. Id. 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 assistance of counsel by a
5 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
were 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 permit 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 the
6 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 record is silent as to counsel’s trial strategy, an appellate court may
not speculate about why counsel 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 counsel had a plausible reason 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 questionable competence.
Id. Rather, to show that counsel’s acts or omissions were outside the range of
7 professionally competent assistance, the defendant must show that counsel’s errors
were so serious that she was not functioning as counsel. Id.
Following his conviction, appellant did not file a motion for new trial. As such,
appellant’s trial counsel has not had 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 plausible 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 sound 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 allegations of ineffectiveness for failing to 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 not
8 deficient for failing to file a sworn motion for community supervision and failing to
object to the ten year sentence as cruel and unusual punishment.
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 could
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.” TEX. CODE OF CRIM. PROC. art. 42.12 §
5(a) (West 2015).
Appellant filed an election requesting the trial court assess his punishment
(C.R. 69). Appellant signed admonishments 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 addition, 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.
9 When a jury assesses punishment, and a defendant seeks community
supervision, for that defendant to be eligible to receive community supervision, he
must file a sworn motion that he is eligible to receive community supervision. TEX.
CODE OF CRIM. PROC. 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 sworn 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 application for probation is mandatory); See also
Ellison v. State, 201 S .W.3d 714, 718 (Tex. Crim. App. 006) (acknowledging that under
§ 4 of article 42.12, jury must make two determinations: “(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 community supervision. TEX. CODE OF
CRIM. PROC. 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 probation
10 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 unnecessary
motion”).
Trial counsel was not deficient for failing to file a sworn motion for community
supervision because 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 [14th Dist.] 1992, no pet.); See also Washington v. State, No. 01-13-00369-CR,
2014 WL 4658476, at *4 (Tex. App.–Houston [1st. 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.
App.—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 trial 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 waives 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.
11 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 [14th 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 object 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 filed 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 Appellant’s allegations that trial counsel’s deficiencies
prejudiced him are inadequately brief because he makes no assertion of how the
outcome would have been different. See TEX. R. APP. PROC. 38.1(1)(i)(requiring
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.
12 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). Appellant’s point of error should be overruled.
REPLY TO SECOND POINT OF ERROR
Appellant 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 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 point 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.
Preservation 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….” TEX.
R. APP. PROC. 33.1(a). Even a constitutional or statutory right can be waived by failing
13 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 punishment 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 when 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 constitutions, when he did not raise them in trial
court). Appellant 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 [1st 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.—
14 Houston [14th 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 cruel 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 constitutional 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 TEX. R.
APP. P. 33.1(a); see also Rhoades, 934 S.W.2d at 120; Nicholas, 56 S.W.3d at 768. For this
reason alone, appellant’s point of error should be overruled.
The Eighth Amendment of the United States Constitution provides that
“[e]xcessive 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 Fourteenth Amendment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459,
463 (1947). The prohibition against 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);
15 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 sentence 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 Children’s Assessment Center, which was contrived by the
complainant’s biological father.”5 This is a distortion of the facts of this case. 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 pattern 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. Appellant admitted that he knew he was in bed with
5 Appellant’s brief at 24.
16 Chelby when he put his hands down her pants (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 clearly 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 damage 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 ten days
after he sexually assaulted Chelby (R.R.III 66). When Chelby outcried, Ms. Limbrick
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 Chelby
17 (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 TEX. PENAL CODE ANN. § 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 for 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 [1st. Dist.] 2012,
pet. ref’d) (holding that a sentence of twenty-five years for aggravated sexual assault of
a child does not constitute cruel and unusual punishment); Peacock v. State, No. 14-00-
18 00875-CR, 2001 WL 931135, at * 1-2 (Tex. App.—Houston [14 Dist.] 2001, no pet.)
(mem. op., not designated for publication) (holding that sentence of thirty years did
not constitute cruel and unusual punishment); See also Arriaga v. State, 335 S.W.3d 331,
336 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (mem. op., not designated for
publication) (holding that “[t]he trial court’s sentence 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 established 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 [14th 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.
19 CONCLUSION
It is respectfully submitted that all things are regular and that the conviction
should be affirmed.
/s/ Abbie Miles ABBIE MILES 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-generated document 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 Attorney
20 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 ABBIE MILES 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