Opinion issued June 13, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-01005-CR ——————————— TRELENN POOLE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 1556673
MEMORANDUM OPINION
Appellant, Trelenn Poole, pleaded guilty to aggravated robbery with a deadly
weapon,1 and after a presentence investigation, the trial court found him guilty and
1 See TEX. PENAL CODE § 29.03(a)(2). assessed punishment at 25 years’ confinement. In two issues on appeal, appellant
contends that he received (1) cruel and unusual punishment and (2) ineffective
assistance of counsel. We affirm.
BACKGROUND
Factual Background
Appellant, who was carrying a gun, approached retired Houston Police
Officer Joe Aldaco and demanded Aldaco’s gold chain. Aldaco complied with
appellant’s demand, but had trouble getting the chain off his neck, so appellant said,
“Hurry up, you’re stalling.” Appellant then discharged his gun to show that he
“meant business.” Aldaco offered to break the chain to get it off, but appellant told
him not to because this was the way appellant made his living.
After retrieving the gold chain, appellant told Aldaco to get on his knees and
asked for Aldaco’s wallet. When Aldaco opened his wallet he said, “HPD.”
Appellant then took the wallet, panicked, and ran off.
Procedural Background
Appellant pleaded guilty to aggravated robbery with a deadly weapon. At the
close of the presentence investigation hearing, defense counsel told the trial court
that “this was not a probation case,” and asked the trial court to assess a punishment
of five years in light of appellant’s age (22 years old) and the fact that appellant had
a child. The State, in contrast, asked for a sentence of 30 years because appellant
2 confessed to robbing Aldaco “execution style” while he was on his knees, discharged
his weapon during the offense, and had another pending robbery case.
The trial court assessed punishment at 25 years’ confinement.
CRUEL AND UNUSUAL PUNISHMENT
In his second issue, appellant contends that “appellant received cruel and
unusual punishment where the record reflects that he received twenty-five years [in
prison] but was eligible for parole.” Specifically, appellant claims that “his sentence
is disproportionate to the offense for which he was charged and violates the Eighth
Amendment to the United States Constitution prohibiting cruel and unusual
punishment[.]”
Failure to object properly to an error at trial, even a constitutional error,
waives the complaint on appeal. Perez v. State, 464 S.W.3d 34, 42 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d); see also Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012). To preserve for appellate review a complaint that a sentence
is grossly disproportionate, constituting cruel and unusual punishment, a defendant
must present to the trial court a timely request, objection, or motion stating the
specific grounds for the ruling desired. See TEX. R. APP. P. 33.1(a); see also Rhoades
v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that defendant
waived any error regarding violation of state constitutional right against cruel and
unusual punishment because argument was presented for first time on appeal);
3 Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d) (holding appellant’s assertion that sentence was grossly disproportionate
waived when complaint not raised by objection in trial court or by motion for new
trial); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997,
pet. ref’d) (holding that failure to object to sentence in trial court on grounds that it
violated federal and state constitutional bans on cruel and unusual punishment
waived appellate review of those claims).
Appellant never objected to the alleged disproportionality of his sentence
either when the trial court imposed the sentence or in a post-trial motion. We
conclude that, by failing to raise the issue with the trial court, appellant did not
preserve any challenge to the disproportionality of his sentence under either the
United States or Texas Constitution. We hold that appellant’s complaint regarding
his sentence is waived on appeal. See TEX. R. APP. P. 33.1(a); see also Rhoades, 934
S.W.2d at 120; Noland, 264 S.W.3d at 151–52; Solis, 945 S.W.2d at 301.
Accordingly, we overrule issue two.
INEFFECTIVE ASSISTANCE OF COUNSEL
In issue one, appellant contends that he received ineffective assistance of
counsel at trial because defense counsel failed to (1) prove his eligibility for
probation, (2) argue for probation, (3) cross-examine the complainant, or (4) object
to cruel and unusual punishment.
4 Standard of Review
The Sixth Amendment to the United States Constitution guarantees the right
to the reasonably effective assistance of counsel in criminal prosecutions. Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see U.S. CONST. amend. VI. To
prove a claim of ineffective assistance of counsel, appellant must show that (1) his
trial counsel’s performance fell below an objective standard of reasonableness and
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687–88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.
App. 2011). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s
performance, we look to the totality of the representation to determine the
effectiveness of counsel, indulging a strong presumption that counsel’s performance
falls within the wide range of reasonable professional assistance or trial strategy. See
Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).
Appellant has the burden to establish both prongs of Strickland by a
preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.
Crim. App. 1998). “An appellant’s failure to satisfy one prong of the Strickland test
negates a court’s need to consider the other prong.” Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697. We apply the
5 same two-prong Strickland standard of review to claims of ineffective assistance of
counsel during both the guilt and punishment phases of trial. See Hernandez v. State,
988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999).
Failure to Cross-Examine Complainant
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Opinion issued June 13, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-01005-CR ——————————— TRELENN POOLE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 1556673
MEMORANDUM OPINION
Appellant, Trelenn Poole, pleaded guilty to aggravated robbery with a deadly
weapon,1 and after a presentence investigation, the trial court found him guilty and
1 See TEX. PENAL CODE § 29.03(a)(2). assessed punishment at 25 years’ confinement. In two issues on appeal, appellant
contends that he received (1) cruel and unusual punishment and (2) ineffective
assistance of counsel. We affirm.
BACKGROUND
Factual Background
Appellant, who was carrying a gun, approached retired Houston Police
Officer Joe Aldaco and demanded Aldaco’s gold chain. Aldaco complied with
appellant’s demand, but had trouble getting the chain off his neck, so appellant said,
“Hurry up, you’re stalling.” Appellant then discharged his gun to show that he
“meant business.” Aldaco offered to break the chain to get it off, but appellant told
him not to because this was the way appellant made his living.
After retrieving the gold chain, appellant told Aldaco to get on his knees and
asked for Aldaco’s wallet. When Aldaco opened his wallet he said, “HPD.”
Appellant then took the wallet, panicked, and ran off.
Procedural Background
Appellant pleaded guilty to aggravated robbery with a deadly weapon. At the
close of the presentence investigation hearing, defense counsel told the trial court
that “this was not a probation case,” and asked the trial court to assess a punishment
of five years in light of appellant’s age (22 years old) and the fact that appellant had
a child. The State, in contrast, asked for a sentence of 30 years because appellant
2 confessed to robbing Aldaco “execution style” while he was on his knees, discharged
his weapon during the offense, and had another pending robbery case.
The trial court assessed punishment at 25 years’ confinement.
CRUEL AND UNUSUAL PUNISHMENT
In his second issue, appellant contends that “appellant received cruel and
unusual punishment where the record reflects that he received twenty-five years [in
prison] but was eligible for parole.” Specifically, appellant claims that “his sentence
is disproportionate to the offense for which he was charged and violates the Eighth
Amendment to the United States Constitution prohibiting cruel and unusual
punishment[.]”
Failure to object properly to an error at trial, even a constitutional error,
waives the complaint on appeal. Perez v. State, 464 S.W.3d 34, 42 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d); see also Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012). To preserve for appellate review a complaint that a sentence
is grossly disproportionate, constituting cruel and unusual punishment, a defendant
must present to the trial court a timely request, objection, or motion stating the
specific grounds for the ruling desired. See TEX. R. APP. P. 33.1(a); see also Rhoades
v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that defendant
waived any error regarding violation of state constitutional right against cruel and
unusual punishment because argument was presented for first time on appeal);
3 Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d) (holding appellant’s assertion that sentence was grossly disproportionate
waived when complaint not raised by objection in trial court or by motion for new
trial); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997,
pet. ref’d) (holding that failure to object to sentence in trial court on grounds that it
violated federal and state constitutional bans on cruel and unusual punishment
waived appellate review of those claims).
Appellant never objected to the alleged disproportionality of his sentence
either when the trial court imposed the sentence or in a post-trial motion. We
conclude that, by failing to raise the issue with the trial court, appellant did not
preserve any challenge to the disproportionality of his sentence under either the
United States or Texas Constitution. We hold that appellant’s complaint regarding
his sentence is waived on appeal. See TEX. R. APP. P. 33.1(a); see also Rhoades, 934
S.W.2d at 120; Noland, 264 S.W.3d at 151–52; Solis, 945 S.W.2d at 301.
Accordingly, we overrule issue two.
INEFFECTIVE ASSISTANCE OF COUNSEL
In issue one, appellant contends that he received ineffective assistance of
counsel at trial because defense counsel failed to (1) prove his eligibility for
probation, (2) argue for probation, (3) cross-examine the complainant, or (4) object
to cruel and unusual punishment.
4 Standard of Review
The Sixth Amendment to the United States Constitution guarantees the right
to the reasonably effective assistance of counsel in criminal prosecutions. Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see U.S. CONST. amend. VI. To
prove a claim of ineffective assistance of counsel, appellant must show that (1) his
trial counsel’s performance fell below an objective standard of reasonableness and
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687–88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.
App. 2011). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s
performance, we look to the totality of the representation to determine the
effectiveness of counsel, indulging a strong presumption that counsel’s performance
falls within the wide range of reasonable professional assistance or trial strategy. See
Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006).
Appellant has the burden to establish both prongs of Strickland by a
preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.
Crim. App. 1998). “An appellant’s failure to satisfy one prong of the Strickland test
negates a court’s need to consider the other prong.” Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697. We apply the
5 same two-prong Strickland standard of review to claims of ineffective assistance of
counsel during both the guilt and punishment phases of trial. See Hernandez v. State,
988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999).
Failure to Cross-Examine Complainant
Appellant contends that he received ineffective assistance of counsel because
defense counsel did not cross-examine Aldaco. Appellant argues that defense
counsel should have elicited evidence that appellant did not harm Aldaco and fled
upon realizing that Aldaco was HPD. However, this evidence was elicited during
Aldaco’s direct examination. Defense counsel was not ineffective for failing to elicit
evidence that the trial court had already heard.
Community Supervision
Appellant contends that he received ineffective assistance of counsel because
defense counsel (1) did not prove appellant’s eligibility for community supervision,
but instead (2) told the trial court that this was “not a probation case.” However,
appellant pleaded guilty to aggravated robbery and the judgment included a deadly
weapon finding. A trial court cannot order community supervision in such cases.
See TEX. CODE CRIM. PROC. art. 42A.054 (a)(10), (b)(1)(A). Because appellant was
not eligible for judge-ordered community supervision, defense counsel was not
ineffective for not proving appellant’s eligibility or for arguing that this “was not a
probation case.”
6 Cruel and Unusual Punishment
Finally, appellant contends he received ineffective assistance because defense
counsel did not object that his 25-year-sentence was cruel and unusual punishment.
Appellant contends that “a twenty-five year sentence is grossly disproportionate to
the crime in light of the fact that [appellant] has no prior felony convictions and has
never been granted adult probation in this or any other state in the United States.”
The Eighth Amendment to the Constitution of the United States provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. CONST. amend. VIII. This provision was made
applicable to the states by the Due Process Clause of the Fourteenth Amendment.
Robinson v. California, 370 U.S. 660, 675 (1962). However, it is well settled in
Texas that, when, as here, a sentence falls within the statutory range of punishment,
it is generally not unconstitutional. State v. Simpson, 488 S.W.3d 318, 323 (Tex.
Crim. App. 2016). However, a very narrow exception to the general rule exists—an
individual’s sentence may be unconstitutional, despite falling within the statutory
range, if it is grossly disproportionate to the offense. Solem v Helm, 463 U.S. 277,
287–90 (1983). Nonetheless, “[o]utside the context of capital punishment,
successful challenges to the proportionality of particular sentences [will be]
exceedingly rare.” Id. at 289–90 (alterations in original) (quoting Rummel v. Estelle,
445 U.S. 263, 272 (1980)).
7 “To determine whether a sentence for a term of years is grossly
disproportionate for a particular defendant’s crime, a court must judge the severity
of the sentence in light of the harm caused or threatened to the victim, the culpability
of the offender, and the offender’s prior adjudicated and unadjudicated offenses.”
Simpson, 488 S.W.3d at 323 (citing Graham v. Florida, 560 U.S. 48, 60 (2010)). “In
the rare case in which this threshold comparison leads to an inference of gross
disproportionality, the court should then compare the defendant’s sentence with the
sentences received by other offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions.” Id. (citing Graham, 560 U.S. at
60, 130 S. Ct. 2011). “If this comparative analysis validates an initial judgment that
the sentence is grossly disproportionate, the sentence is cruel and unusual.” Id.
Here, appellant’s aggravated-robbery-with-a-deadly-weapon offense had a
punishment range of 5 to 99 years’ imprisonment. See TEX. PENAL CODE § 12.32,
29.03(a)(2). Appellant’s 25-year-sentence is in the low-end of that range. The
charged crime included a deadly weapon finding, and, appellant actually discharged
his weapon during the offense. While appellant points out in his brief that he has no
prior felony convictions or adult probations, the record from the presentence
investigation hearing shows a criminal history dating back to 2011. And, at the time
of this trial, appellant had additional pending charges for aggravated robbery and
child endangerment.
8 Considering the evidence in this case, this is not one of those “rare” cases in
which gross disproportionality can be inferred. See Simpson, 488 S.W.3d at 323.
Accordingly, appellant’s sentence, which was within the range of punishment for
the given offense, does not violate the Eighth Amendment. Because appellant’s
sentence was not cruel and unusual, defense counsel was not ineffective for failing
to object that it was.
We overrule issue one.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).