Tommie Ray Limbrick v. State, 14-15-00258-CR

Background

Appellant Tommie Ray Limbrick pled guilty to aggravated sexual assault of a child under 14 and elected judicial (judge) punishment. Punishment hearing followed; judge sentenced him to 10 years’ imprisonment. No motion for new trial was filed.
Victim (Chelby Walker) reported appellant kissed her and put his hand/fingers into her pants; medical exam noted a genital abrasion and victim’s statement that fingers penetrated her vagina.
At the hearing, mitigating testimony included the victim’s statements implying her biological father encouraged her to incriminate appellant, and the mother’s testimony minimizing the offense; appellant also initially apologized and later admitted he knew the child’s age and that his conduct was wrong.
Appellant raised two issues on appeal: (1) ineffective assistance of trial counsel for failing to file a sworn motion for community supervision and for failing to object to the 10-year sentence as cruel and unusual; (2) the 10-year sentence constitutes cruel and unusual punishment.
State’s principal responses: (a) the record is silent as to counsel’s strategy so appellant cannot meet Strickland; (b) a sworn application for community supervision is required only for jury-assessed punishment, not when the judge assesses punishment; (c) the 10-year sentence is within the statutory range and was warranted by the facts; (d) the cruel-and-unusual complaint was not preserved because no contemporaneous objection or post-trial motion was made.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Ineffective assistance for failing to file sworn motion for community supervision	Trial counsel was per se ineffective for not filing a sworn probation application	A sworn application is only required when punishment is jury-assessed; here appellant elected judge sentencing so filing was unnecessary; record is silent on strategy	Counsel not ineffective; failure to file was not deficient because application not required for judge-assessed deferred adjudication and silent record defeats claim
2) Ineffective assistance for failing to object to sentence as cruel and unusual	Counsel should have objected at sentencing; failure waived the claim	Objection would have been futile because sentence is within statutory limits; silent record presumes reasonable strategy	Counsel not ineffective; no prejudice shown and objection would likely be overruled
3) Cruel and unusual challenge to 10-year sentence	Ten years is excessive given circumstances; child’s best interest favored probation	Sentence is within statutory range and supported by offense severity and trial court’s assessment of child’s best interest; error not preserved for appeal	Not preserved (no contemporaneous objection or new-trial motion); on merits, sentence not cruel and unusual as it falls within statutory range and is not grossly disproportionate
4) Prejudice prong (reasonable probability of different outcome)	But for counsel’s omissions, outcome would differ (probation or lesser sentence)	Appellant does not identify how outcome would change; no sworn application, no record showing jury or judge would have granted probation	Prejudice not shown; appellate brief inadequately argues prejudice; claim fails

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (standards for evaluating counsel performance under Strickland)
Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) (silent record presumptively supports counsel’s strategic choices)
Samuel v. State, 477 S.W.2d 611 (Tex. Crim. App. 1972) (punishment within statutory limits generally not cruel and unusual)
Roper v. Simmons, 543 U.S. 551 (U.S. 2005) (Eighth Amendment analysis references evolving standards of decency)
Atkins v. Virginia, 536 U.S. 304 (U.S. 2002) (Eighth Amendment proportionality principles and limits)