Lakitrik Lorenzo Tyler v. the State of Texas

NO. 12-22-00227-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LAKITRICK LARENZO TYLER, § APPEAL FROM THE 145TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION
Lakitrick Larenzo Tyler appeals his convictions for aggravated robbery, aggravated
kidnapping, assault of a pregnant person, and unlawful possession of a firearm by a convicted
felon. He raises four issues on appeal. We affirm.

BACKGROUND
Appellant was indicted for aggravated robbery, aggravated kidnapping, aggravated sexual
assault, assault of a pregnant person, and unlawful possession of a firearm by a convicted felon. 1
The indictment also included an enhancement allegation that Appellant had previously been
convicted of aggravated assault.
Appellant pleaded “not guilty” to the offenses and the matter proceeded to a jury trial. The
victim, who was in a relationship with Appellant, testified that after she and Appellant attended
church on the day in question, he became upset and refused to allow her to leave his presence. She
testified that Appellant was consuming alcohol and wanted to leave the residence driving her van.

1
See TEX. PENAL CODE ANN. §§ 20.04(b) (West 2019) (aggravated kidnapping), 22.01(b)(8) (West Supp.
2022) (assault of a pregnant person), 22.021(a)(1)(A)(i), (a)(2)(A)(iv) (West 2019) (aggravated sexual assault),
29.03(a)(2) (West 2019) (aggravated robbery), 46.04(a)(1) (West Supp. 2022) (unlawful possession of a firearm by a
convicted felon).
The victim refused to give him the keys, and in response, Appellant displayed a gun, “like he
always used to.” Consequently, she surrendered the keys to Appellant, and upon his return, the
victim believed that Appellant appeared to be intoxicated.
The victim testified she was scheduled to meet a friend at the hospital to serve as a birth
companion for the birth of her friend’s child. Appellant initially refused to allow the victim to go
to the hospital. Subsequently, the pair went to her ex-mother-in-law’s home to drop off her
children. Upon the couple’s return, Appellant exited the van and grabbed the keys to prevent the
victim from leaving, but the victim retrieved another set of keys and went to the hospital. The
victim testified that Appellant insisted that she send messages to him to prove she was at the
hospital. The victim testified that upon her return home, Appellant was upset and threatened her
with a gun, although she was able to retrieve the gun from Appellant and hide it. The victim further
testified that Appellant examined the victim’s genitals for signs of sexual activity. She testified
that Appellant did not believe that she was not “cheating,” and he began to hit and choke her.
After finally convincing Appellant to leave the residence for ice cream, the victim testified
that she seized an opportunity, fled into a pizzeria, and employees called 911. Testimony from the
pizzeria manager, along with video evidence from the store’s surveillance system, was admitted
depicting the victim frantically attempting to escape Appellant, who entered the store with a gun,
and attempted to further abduct the victim. She managed to escape, and store employees hid the
victim in the freezer. A store patron similarly testified that the victim entered the store and
repeatedly told everyone to call 911. The patron testified that Appellant barged into the pizzeria
and continually said, “She’s coming with me” while displaying a handgun.
Nacogdoches Police Department Lieutenant Chasen Partin happened to be driving by the
restaurant as the incident occurred, and observed numerous females run out the back door of the
building, and Appellant fleeing from the front door to a vehicle. Partin drew his service weapon
at Appellant, who initially complied with Partin’s commands, but subsequently fled. Partin did
not see Appellant’s gun.
Nacogdoches Police Department Officer Ty Birdwell testified he arrived at the scene and
detained Appellant as he began to flee in the vehicle. Birdwell searched the vehicle and discovered

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a handgun in the floorboard area beside the passenger seat. 2 The handgun was entered into
evidence.
Partin also testified he observed the victim, who was visibly pregnant, at the scene, and
noticed marks on her face and throat, as well as bruising on her arms. Nacogdoches Police Officer
Treylyn Smith interviewed the victim and noticed that she appeared “really bruised with a bleeding
lip,” along with severe bruising around one of her eyes. Smith testified the victim was in an
“excited state” and told him she and Appellant argued and that Appellant struck her, punching her
several times in the face. Smith also stated that the victim told him that after pleading with
Appellant, she convinced Appellant to leave the residence to take her for ice cream. Smith testified
that the victim appeared more concerned about Appellant than herself. Smith acknowledged that
Appellant was having mental issues and appeared to be intoxicated.
Nacogdoches Police Officer Robert Price testified that he also assisted with the arrest of
Appellant and later interviewed Appellant, who told the officer he had recently been released from
prison. Appellant told Price that the victim struck him with a hammer causing his visible tooth
and lip injuries.
The victim testified that following Appellant’s arrest, she bonded him out of the
Nacogdoches County Jail and that Appellant stabbed her following his release from jail.
The jury found Appellant “guilty” of aggravated robbery, aggravated kidnapping,
aggravated assault of a pregnant person, and unlawful possession of a firearm by a convicted felon.
The jury acquitted Appellant of the aggravated sexual assault charge.
Appellant elected that the trial court assess his punishment. After a punishment hearing,
the trial court sentenced Appellant to life imprisonment on the aggravated robbery and aggravated
kidnapping charges, and ten years of imprisonment on the assault of a pregnant person and
unlawful possession of a firearm by a convicted felon charges, all of which the trial court ordered
to be concurrently served. This appeal followed.

DOUBLE JEOPARDY
In his first issue, Appellant contends that the convictions for all these offenses constitute a
single offense for purposes of double jeopardy.

2
As relevant to the unlawful possession of a firearm by a convicted felon charge, the State and Appellant
stipulated that the Appellant was convicted of aggravated assault and released from custody on May 10, 2019.

3
Standard of Review and Applicable Law
The Fifth Amendment’s Double Jeopardy Clause offers protection against multiple
prosecutions and multiple punishments for the same offense. U.S. CONST. amend. V; see Illinois
v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264, 65 L. Ed. 2d 228 (1980); Cervantes v. State,
815 S.W.2d 569, 572 (Tex. Crim. App. 1991). To determine whether two offenses are the “same
offense” for purposes of double jeopardy, we apply the “same-elements” test as set forth in
Blockburger v. United States. See Bien v. State, 550 S.W.3d 180, 184 (Tex. Crim. App. 2018)
(citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932)).
Under the “same-elements” test, “two offenses are not the same if ‘each provision requires proof
of a fact which the other does not.’” Id. (quoting Blockburger, 284 U.S. at 304, 52 S. Ct. at 182).
Additionally, the Supreme Court has long held that simply because an individual engaged
in only one “culpable act,” he is not precluded from conviction and punishment for more than one
offense. United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 2860, 125 L. Ed. 2d 556
(1993) (rejecting “same conduct” test of Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L.
Ed. 2d 548 (1990)). If both offenses, as pleaded, have different elements under the Blockburger
test, a judicial presumption arises that the offenses are different for double jeopardy purposes, and
the defendant may be convicted and punished separately for each offense. Bien, 550 S.W.3d at
184–85. That presumption, however, can be rebutted if it can be shown that the legislature clearly
intended only one punishment for both offenses. Id. at 185; Ex parte Benson, 459 S.W.3d 67, 72
(Tex. Crim. App. 2015).
In Texas, the Blockburger “same-elements” test is informed only by the pleadings, and a
reviewing “court may not consider the evidence presented at trial” to make the determination.
Bien, 550 S.W.3d at 184; Benson, 459 S.W.3d at 73. Moreover, even where there is a substantial
overlap in the proof required for each offense, the offenses are not the “same offense” for double
jeopardy purposes if each offense, as pleaded, requires at least one element not required by the
other offense. Ex parte McWilliams, 634 S.W.2d 815, 824 (Tex. Crim. App. 1982). Once the
offenses are determined to be different offenses under the Blockburger “same-elements” test, we
consider a non-exclusive set of factors set forth in Ex parte Ervin to determine whether the
legislature clearly intended only one punishment for these separate offenses:

whether the offenses provisions are contained within the same statutory section, whether the
offenses are phrased in the alternative, whether the offenses are named similarly, whether the

4
offenses have common punishment ranges, whether the offenses have a common focus (i.e. whether
the “gravamen” of the offense is the same) and whether that common focus tends to indicate a single
instance of conduct, whether the elements that differ between the offenses can be considered the
“same” under an imputed theory of liability which would result in the offenses being considered the
same under Blockburger (i.e. a liberalized Blockburger standard utilizing imputed elements), and
whether there is legislative history containing an articulation of an intent to treat the offenses as the
same or different for double jeopardy purposes.

Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999). If, as pleaded, the offenses each
have at least one element the other does not, and if, according to the relevant statutory provisions,
it is not clear that the legislature intended both offenses to be punished as one, then separate
convictions and punishments for each offense does not violate one’s right against double jeopardy.
Philmon v. State, 609 S.W.3d 532, 535–36 (Tex. Crim. App. 2020).
Discussion
Appellant contends that he was convicted for multiple offenses all stemming from one
continuing course of conduct, and received multiple punishments for what was in essence a single
offense in violation of the Fifth Amendment’s Double Jeopardy Clause. Specifically, he contends
his conduct constitutes a single continuous act, based on a single impulse to control and restrict
the victim’s every action on the date in question. We disagree that the offenses violate the Double
Jeopardy Clause.
Turning first to the Blockburger test, the first-degree felony offense of aggravated
kidnapping requires the abduction of another person, which is not an element of any of the other
charged offenses. See TEX. PENAL CODE ANN. §§ 20.01(1), (2) (West Supp. 2022) (defining
“restrain” and “abduct”), 20.04(b) (West 2019) (identifying elements of aggravated kidnapping as
charged in this case).
The first-degree felony offense of aggravated robbery includes a threat of imminent bodily
injury or death during the course of committing a theft, an element unique to it as distinguished
from the other alleged offenses. See Id. §§ 29.02 (West 2019) (robbery statute as charged here
requires theft with intent to obtain or maintain control of property plus intentional or knowing
threat to place another in fear of imminent bodily injury or death), 29.03(a)(2) (West 2019)
(aggravated robbery is robbery under Section 29.02 plus aggravating element of use or exhibition
of deadly weapon during robbery).

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Unlike the other offenses, the third-degree felony offense of assault of a pregnant person
requires the unique element that the actor knows the victim is pregnant at the time of the offense.
See id. § 22.01(b)(8) (West Supp. 2022).
The third-degree felony offense of unlawful possession of a firearm by a convicted felon
requires the State to prove, distinct from the other alleged offenses, that Appellant have a felony
conviction along with possession of a firearm before the fifth anniversary of the person’s release
from confinement or release from supervision under parole or mandatory supervision. See id. §
46.04(a)(1) (West Supp. 2022).
Accordingly, a single prosecution for all these separate offenses does not violate the double
jeopardy clause under the Blockburger “same-elements” test. See Blockburger, 284 U.S. at 304,
52 S. Ct. at 182 (“[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which the other does not.”).
However, this does not end our inquiry. Proceeding to the Ervin factors, aggravated
robbery is found in Title 7: Offenses Against Property of the Texas Penal Code. Aggravated
kidnapping and assault of a pregnant person are found in Title 5: Offenses Against the Person.
Unlawful possession of a firearm by a convicted felon is found in Title 10: Offenses Against Public
Health, Safety, and Morals. The offenses are not phrased in the alternative, nor do they have
similar names.
Each offense has a different gravamen or focus. Aggravated kidnapping’s gravamen is
abduction. See Schweinle v. State, 915 S.W.2d 17, 19 n. 2 (Tex. Crim. App. 1996) (per curiam).
Kidnapping is a result-oriented offense because the ultimate focus is the abduction of the victim,
not how the defendant restrains or interferes with the victim’s liberty. Gonzales v. State, 270
S.W.3d 282, 288 (Tex. App.—Amarillo 2008, pet. ref’d) (op. on reh’g). The offense is legally
completed when at any time during the restraint, the defendant forms the intent to prevent the
victim’s liberation by secreting or holding the victim in a place he is unlikely to be found. Laster
v. State, 275 S.W.3d 512, 521 (Tex. Crim. App. 2009). The gravamen of robbery is its assaultive
nature in the course of committing a theft. See Purser v. State, 902 S.W.2d 641, 647 (Tex. App.—
El Paso 1995, pet. ref’d.).
Assault of a pregnant person and unlawful possession of a firearm by a convicted felon are
both third degree felonies as charged. The gravamen or focus of these offenses is likewise distinct

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from the other offenses. The gravamen of assault of a pregnant person, a result-oriented offense,
is causing bodily injury, with the added focus that it be committed against a particular class of
victim: a pregnant person. See TEX. PENAL CODE ANN. § 22.01(b)(8); see also Landrian v. State,
268 S.W.3d 532, 537 (Tex. Crim. App. 2008) (discussing gravamen of assault generally). The
gravamen or focus of unlawful possession of a firearm is apparently that the Legislature deemed
the possession of firearms by a particular class of people—convicted felons meeting the statutory
criteria—is against the public health, safety, and morals of our society. See TEX. PENAL CODE
ANN. § 46.04(a)(1). This is presumably due to their demonstrated dangerousness to society for
past commission of sufficiently serious criminal offenses, such that criminalizing their possession
of firearms for a specified time period after their release is justified. See id. In summary, all of
these offenses are separate and distinct, and the legislature treats them as such, even if committed
during a single criminal episode. Finally, there appears to be no legislative history regarding
concurrent charges of the offenses, and Appellant has not cited any such relevant history.
Therefore, we hold that as pleaded, the offenses each have at least one element the other
does not, and according to the relevant statutory provisions, it is not clear that the legislature
intended the offenses to be punished as one; accordingly, separate convictions and punishments
for each offense did not violate Appellant’s right against double jeopardy. See Philmon, 609
S.W.3d at 535–36; see also Ex parte Herron, 790 S.W.2d 623, 625 (Tex. Crim. App. 1990)
(holding convictions for aggravated kidnapping and aggravated robbery in single trial did not
violate double jeopardy provisions even though same evidentiary facts were used to support both
convictions, because legislature intended to impose multiple punishments for conduct that
occurred in the same transaction); Riley v. State, No. 05-04-00749-CR, 2005 WL 2764586, at *3
(Tex. App.—Dallas Oct. 26, 2005, no pet.) (op., not designated for publication) (holding that
although kidnapping and robbery occurred as part of single criminal episode, against same victim,
and shared same aggravating factor—use or exhibition of a deadly weapon—they were distinct
acts—restraint of victim and theft of property—and constituted different offenses with unique
elements of proof).
Appellant’s first issue is overruled.

7
EXTRANEOUS OFFENSES
In his second issue, Appellant contends that the trial court abused its discretion in allowing
the State to introduce numerous instances of extraneous conduct during the guilt/innocence phase
of trial under Texas Code of Criminal Procedure Article 38.371.
In a case in which a family member of the defendant is the victim, each party may offer
“testimony or other evidence of all relevant facts and circumstances that would assist the trier of
fact in determining whether the actor committed the offense,” including “testimony or evidence
regarding the nature of the relationship between the actor and the alleged victim.” TEX. CODE
CRIM. PROC. ANN. art. 38.371(b) (West Supp. 2022). The evidence must still be admissible under
the Texas Rules of Evidence. See id. art. 38.371(c).
At trial, pursuant to Article 38.371, the State offered testimony from the victim regarding
past extraneous incidents of domestic violence perpetrated against her by Appellant. Appellant
argues on appeal that the trial court abused its discretion in admitting this evidence, because the
evidence was unnecessary and served no other purpose than as bad character conformity evidence.
As part of this issue, Appellant also contends that the evidence was inadmissible under Texas Rule
of Evidence 403.
To preserve a complaint for our review, a party must have presented to the trial court a
timely request, objection, or motion sufficiently stating the specific grounds, if not apparent from
the context, for the desired ruling. TEX. R. APP. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d
819, 822 (Tex. Crim. App. 2021). Further, the party must obtain an express or implicit adverse
trial court ruling or object to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Dixon v.
State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020).
Outside of the presence of the jury, the State indicated to the trial court that it intended to
ask the victim questions concerning prior incidents with Appellant. The following discussion took
place:

[PROSECUTOR]: Your Honor, before we get started, the next witness will be . . . the
victim in this case. The State intends on questioning [the victim] about some extraneous offenses
that will fall under 38.371 of the Code of Criminal Procedure that relate directly to the relationship
between the victim and the Defendant.

THE COURT: [Defense Counsel]?

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[DEFENSE COUNSEL]: Your Honor, looking at the statute -- I knew this was going to
come up -- and so looking at the statute, I’m not going to make an objection at this time, Your
Honor.

THE COURT: All right. Very well.

[DEFENSE COUNSEL]: I understand it’s one of those things that they’ve corrected in the
statutes.

THE COURT: All right. Very well. Then that testimony will be allowed under Article
38.371.

Not only did trial counsel affirmatively state that he would not object at that time, our
review of the record shows that counsel never made an objection to the individual instances of
extraneous conduct when offered by the State. Accordingly, Appellant has not preserved this
issue. Under these circumstances, counsel’s equivalent of an affirmative “no objection” statements
served per se as “an unequivocal indication that a waiver was both intended and understood.” See
Thomas v. State, 408 S.W.3d 877, 885-86 (Tex. Crim. App. 2013); Upchurch v. State, 656 S.W.3d
170, 177–78 (Tex. App.—Fort Worth 2022, no pet.) (applying rule to extraneous offense evidence
from prior incident in which defendant set victim on fire and holding “no objection” statements
waived issue on appeal).
Similarly, when the trial court admits extraneous offenses pursuant to Article 38.371, the
defendant must object at trial that the probative value of the extraneous offense is substantially
outweighed by the risk of undue prejudice to preserve a Rule 403 complaint on appeal. Keller v.
State, 604 S.W.3d 214, 228 (Tex. App.—Dallas 2020, pet. ref’d). Therefore, without any
objection on Rule 403 grounds, Appellant has likewise waived this portion of his second issue.
See id.
Appellant’s second issue is overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, Appellant argues that trial counsel provided ineffective assistance of
counsel.
Standard of Review and Applicable Law
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).

9
Under the first prong of the Strickland test, an appellant must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must “show that
counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688,
104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the “deficient performance prejudiced
the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. The
appropriate standard for judging prejudice requires an appellant to “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. The
appellant must prove that his attorney’s errors, judged by the totality of the representation and not
by isolated instances of error, denied him a fair trial. Burruss v. State, 20 S.W.3d 179, 186 (Tex.
App.—Texarkana 2000, pet. ref’d).
It is not enough for the appellant to show that the errors had some conceivable effect on
the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but
for his attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the
extent of his punishment would have been less. See id.; see also Bone v. State, 77 S.W.3d 828,
837 (Tex. Crim. App. 2002). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. An appellant claiming ineffective assistance of counsel must affirmatively prove prejudice
from counsel’s deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App.
1999). Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
It is Appellant’s burden to overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712.
Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808,

10
813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness claim. Id.
Discussion
Appellant contends that trial counsel provided ineffective assistance because he allegedly
did not conduct an adequate investigation into Appellant’s drug use and mental health status, failed
to object to the PSI’s lack of the required substance abuse and mental health evaluations, 3 and
failed to call rebuttal witnesses or proffer any testimony from Appellant at the sentencing hearing.
The record is undeveloped in this direct appeal to overcome the presumption of competence
in the exercise of reasonable professional judgment. See Mata v. State, 226 S.W.3d 425, 430 (Tex.
Crim. App. 2007) (noting that a reviewing court on direct appeal will rarely be able to fairly
evaluate the merits of an ineffective assistance claim, because the record on direct appeal is usually
undeveloped and inadequately reflective of the reasons for defense counsel’s actions at trial).
The record does not support Appellant’s claim that trial counsel failed to conduct some
investigation into Appellant’s mental health and substance abuse issues. See Richardson v. State,
606 S.W.3d 375, 382–83 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (observing that, while
“no reasonable trial attorney would wholly fail to investigate the facts of a case,” record did not
show that counsel was unaware of evidence against appellant, and thus, appellant could not prove
ineffective assistance claim). Furthermore, Appellant has not identified any particular information
that further investigation would have revealed. Thus, Appellant’s allegations that further
investigation could have uncovered more relevant information concerning his mental health and
substance abuse are purely speculative and do not support a conclusion that trial counsel’s
investigation was unreasonable under the circumstances. See Andrus v. Tex., 140 S. Ct. 1875,
1881, 207 L. Ed. 2d 335 (2020) (“In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.”); Cain v. State, 525 S.W.3d 728, 732 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d) (holding counsel’s alleged failure to object to required PSI
evaluations for mental health and substance abuse issues did not support ineffective assistance
claim on direct appeal given silent record as to reasons for failure to object, also rejected argument

3
See TEX. CODE CRIM. PRO. ANN. arts. 42A.253(a)(3), (6) (West 2018) (criminal history, social history, and
psychological evaluation requirement); 42A.257 (West 2018) (alcohol and substance abuse evaluation requirement).

11
that no strategy could support failure to object, and finally concluded that defendant failed to meet
prejudice prong); Castello v. State, 555 S.W.3d 612, 618-19 (Tex. App.—Houston [1st Dist.]
2018, pet. ref’d) (same).
In contrast to Appellant’s assertion, the record in this direct appeal fails to support that
counsel had no potential viable trial strategy sufficient to overcome the presumption of competent
and adequate assistance in the exercise of reasonable professional judgment. See Lopez v. State,
343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011) (stating that “court must not engage in
retrospective speculation” and that “[i]t is not sufficient that appellant show, with the benefit of
hindsight, that his counsel’s actions or omissions during trial were merely of questionable
competence”). Appellant has failed to demonstrate that trial counsel’s representation in this regard
fell outside the range of competence demanded of attorneys in criminal cases. See Ex parte
Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
Finally, with respect to counsel’s alleged failure to call witnesses, any failing in this regard
is irrelevant absent a showing that such witnesses were available, and Appellant would benefit
from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Appellant makes
no argument identifying those witnesses, that they were available to testify, or that their testimony
would have been beneficial to him. Thus, Appellant has not shown that defense counsel’s failure
to call any witnesses amounted to ineffective assistance. See id.
In summary, we hold that the record contains no evidence to rebut the presumption that,
based on the totality of the representation, trial counsel performed competently. See Lopez, 343
S.W.3d at 142-43; Mata, 226 S.W.3d at 430; Thompson, 9 S.W.3d at 81. Furthermore, we hold
that, from the record before us, even if counsel’s performance was deemed deficient, the evidence
reflects no reasonable probability that the result would have been different but for the deficiency.
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.
Appellant’s third issue is overruled.

CRUEL AND UNUSUAL PUNISHMENT
In his fourth issue, Appellant argues that the sentence of life imprisonment is grossly
disproportionate to the crimes committed and amounts to cruel and unusual punishment under the
United States Constitution and the Texas Constitution. Appellant contends that his sentence is

12
grossly disproportionate to his conduct in committing the offenses, and that the trial court should
have imposed a shorter sentence.
Before a complaint may be presented for appellate review, the record must show that
Appellant raised the complaint to the trial court by a timely request, objection, or motion. TEX. R.
APP. P. 33.1(a)(1); see Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.
ref’d). A complaint that a sentence is grossly disproportionate and constitutes cruel and unusual
punishment may be preserved by objecting at the punishment hearing, or when the sentence is
pronounced. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); Kim, 283 S.W.3d at
475. An appellant may raise a sentencing issue for the first time in a motion for new trial only if
he did not have an opportunity to object when the sentence was imposed. Burt, 396 S.W.3d at 577
n.4. In this case, Appellant did not object at the punishment hearing when his sentence was
pronounced. Because Appellant had the opportunity to object to his sentence at the punishment
hearing and failed to do so, we conclude that he failed to preserve this issue for our review. See
TEX. R. APP. P. 33.1(a)(1); Burt, 396 S.W.3d at 577-78.
Even had Appellant preserved the issue for appeal, the result would not change. The United
States Constitution provides that “[e]xcessive 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.
Meadoux v. State, 325 S.W.3d 189, 193 (Tex. Crim. App. 2010). Similarly, the Texas Constitution
provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel or
unusual punishment inflicted.” TEX. CONST. art. 1, § 13. The difference between the Eighth
Amendment’s “cruel and unusual” phrasing and the Texas Constitution’s “cruel or unusual”
phrasing is insignificant. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).
The legislature is vested with the power to define crimes and prescribe penalties. See Davis
v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref’d); see also Simmons v. State,
944 S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d). Courts have repeatedly held that
punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or
unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. In this case, Appellant was
convicted of the first-degree felonies of aggravated kidnapping and aggravated robbery with an
enhancement for a prior felony, which both have a punishment range from fifteen to ninety-nine

13
years of imprisonment, or life imprisonment. See TEX. PENAL CODE ANN. §§ 12.32(a) (West 2019)
(first-degree felony punishment ranges), 12.42(c)(1) (West 2019) (enhancement minimum
sentence range), 20.04(b) (aggravated kidnapping), 29.03(a)(2) (West 2019) (aggravated robbery).
The trial court assessed life imprisonment for both offenses.
Appellant was also convicted of the third-degree felony offenses of assault of a pregnant
person and unlawful possession of a firearm by a convicted felon, which both have a punishment
range from two to ten years of imprisonment. See id. §§ 12.34(a) (West 2019) (third degree felony
punishment range), 22.01(b)(8) (assault of a pregnant person), 46.04(a)(1) (unlawful possession
of a firearm by a convicted felon). The trial court sentenced Appellant to ten years of imprisonment
for both offenses. Thus, the sentences imposed by the trial court fall within the range set forth by
the legislature. Therefore, the punishment is not prohibited as cruel, unusual, or excessive per se.
See Harris, 656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W.2d at 664.
Nevertheless, Appellant urges this Court to consider the factors originally set forth in
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the
proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the
harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and
(3) the sentences imposed for commission of the same crime in other jurisdictions. Id., 463 U.S.
at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas courts
and the Fifth Circuit Court of Appeals in light of the Supreme Court’s decision in Harmelin v.
Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold
determination that the sentence is grossly disproportionate to the crime before addressing the
remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992), cert.
denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989
S.W.2d 842, 845–46 (Tex. App.—Texarkana 1999, no pet.).
We are guided by the holding in Rummel v. Estelle in making the threshold determination
of whether Appellant’s sentence is grossly disproportionate to his crime. 445 U.S. 263, 100 S. Ct.
1133, 63 L. Ed. 2d 382 (1980). In Rummel, the Supreme Court considered the proportionality
claim of an appellant who had received a mandatory life sentence under a prior version of the
Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. See id.,
445 U.S. at 266, 100 S. Ct. at 1135. In that case, the appellant received a life sentence because he
had two prior felony convictions—one for fraudulent use of a credit card to obtain $80.00 worth

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of goods or services and the other for passing a forged check in the amount of $28.36. Id., 445
U.S. at 265–66, 100 S. Ct. at 1134–35. After recognizing the legislative prerogative to classify
offenses as felonies and, further, considering the purpose of the habitual offender statute, the court
determined that the appellant’s mandatory life sentence did not constitute cruel and unusual
punishment. Id., 445 U.S. at 284–85, 100 S. Ct. at 1144–45.
In this case, the offenses Appellant committed—aggravated kidnapping, aggravated
robbery, assault of a pregnant person, and unlawful possession of a firearm by a convicted felon—
are far more serious than the combination of offenses committed by the appellant in Rummel,
while Appellant’s sentences for aggravated kidnapping and aggravated robbery are the same as the
life sentence upheld by the Supreme Court in Rummel, and his sentences for assault of a pregnant
person and unlawful possession of a firearm by a convicted felon are significantly less severe than
the sentence in Rummel.
The evidence at trial showed that Appellant committed aggravated robbery by taking the
victim’s van at gunpoint. He then held her captive and assaulted her by punching her, biting her
face, and jumping on her pregnant stomach. When the victim escaped, Appellant ran into a store
filled with customers and employees and attempted to drag the pregnant victim out of the store at
gunpoint. While released on bond for these offenses, Appellant broke into the victim’s house and
stabbed her with a knife while her young children ran for help. Thus, it is reasonable to conclude
that if the sentence in Rummel is not unconstitutionally disproportionate, neither is Appellant’s
sentence in this case. Because we do not find that the threshold test is satisfied, we need not apply
the remaining elements of the Solem test.
Accordingly, we overrule Appellant’s fourth issue.

DISPOSITION
Having overruled Appellant’s four issues, the trial court’s judgment is affirmed.

BRIAN HOYLE
Justice
Opinion delivered August 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 31, 2023

NO. 12-22-00227-CR

LAKITRICK LARENZO TYLER,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. F2226101)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the
same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court
below be in all things affirmed, and that this decision be certified to the court below for
observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.