In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-25-00285-CR
NO. 09-25-00286-CR
ROBERT COHEN TOLLESON III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause Nos. 26638 and 26737
MEMORANDUM OPINION
Appellant, Robert Cohen Tolleson III, pleaded guilty to aggravated assault
with a deadly weapon and sexual assault of a minor but appeals the trial court’s
sentencing him to concurrent prison terms of five and ten years, respectively. For
the reasons discussed below, we affirm the trial court’s judgments.
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Background
On February 22, 2019, a Polk County grand jury indicted Robert Cohen
Tolleson III for the second-degree felony offense of aggravated assault with a deadly
weapon. Tex. Penal Code Ann. § 22.02(a)(2). On March 29, 2019, a Polk County
grand jury indicted him for the second-degree offense of sexual assault of a child.
Id. § 22.011(a)(2). On April 17, 2025, Tolleson entered a plea of guilty on both
charges pursuant to a plea bargain agreement which provided for a sentencing range
of not less than five years and not more than eighteen years imprisonment. On July
28 and 29, 2025, the trial court conducted a sentencing hearing. At the sentencing
hearing, the State presented no witnesses and relied on the stipulation and
presentence investigation report (PSI). The trial court took judicial notice of both
documents with no objection from Tolleson. 1
Tolleson’s attorney presented seven witnesses, including Tolleson. Tolleson
testified that he was a correctional officer for the Polunsky Unit for about six and a
half to seven years. Tolleson became a trustee four days after he was booked into
jail and had no disciplinary history in the jail. Tolleson testified that he “wanted to
have integrity and accountability” and has complied with all court appearances since
1
The stipulations are a part of the record before us, but the presentence investigation report is not.
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moving to Georgia. Tolleson’s attorney asked why the PSI indicated that Tolleson
was not remorseful. Tolleson explained that he was fearful there were other inmates
around during his interview with the presentence investigation officer and, based on
his experience as a correctional officer, if those inmates had heard what he was going
to tell the presentence investigation officer, Tolleson would be in danger. Tolleson
expressed that he was very sorry for everything he has done and he wants to be held
accountable for his actions.
On cross-examination, the prosecutor asked if Tolleson lost his temper when
the victim of the aggravated assault “tried to leave and you chased her down a road
and tried to run her off the road[.]” Tolleson responded that he was “very sorry[]”
and “didn’t know what [he] was thinking that day.” The prosecutor also asked
Tolleson if he was just now taking accountability for the sexual assault of a child,
noting that “[i]n your PSI, it says that the sexual assault did not happen and that story
was made up by the victim.” Tolleson reiterated that he was “in fear that other
inmates were in visitation at the time, so I was unable to talk to the officer the way I
wanted to talk to him in fear of my safety in the facility.”
Andrew Sisson, Tolleson’s friend and co-worker, testified on his behalf.
Sisson did not think it would benefit society to send Tolleson to prison, describing
Tolleson as a “kind, compassionate person[]” who is “very eager and has a great
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initiative to learn[]” and is “easy to work with and a good person from what I can
tell.” Sisson admitted that he did not know “all the details of why he’s where he’s at
right now[]” but that “the Robert I know definitely doesn’t seem like a person that’s
a bad person that would’ve done whatever he’s been accused of.” On crossexamination, Sisson testified that if he had known the extent of Tolleson’s charges
and what he was pleading guilty to, he “would be apprehensive, I would be asking
questions[]” before recommending Tolleson to work for his company.
Ashley Sisson, Andrew’s daughter, also testified in support of Tolleson.
Ashley has known Tolleson since October 2021, during which Tolleson has “become
a huge part of my family and my closest and best friend.” Tolleson moved in with
her and her husband in October 2022 and has encouraged Ashley to better herself.
Tolleson accompanied Ashley in her career as a photographer, “always [keeping] an
eye out for me and my clients[.]” Ashley described Tolleson as “very kind and
caring[,]” “always wanted to do the best for others and those around him,” and has
not seen any violence or temper from him. Ashley was aware Tolleson was charged
with aggravated assault with a deadly weapon and the sexual assault of a child when
Tolleson moved in with her and her husband. Ashley would have allowed Tolleson
to move in with those pending charges if she had children.
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Elisabeth Shelton, Tolleson’s sister, described Tolleson as “always someone
who values honesty and works very hard to support his family and community. He
has overcome many obstacles in his life already.” She does not believe Tolleson is
a danger to society or to children.
Johnnie Shields, Tolleson’s manager, knew of Tolleson’s aggravated assault
charge, but did not know of his sexual assault of a child charge. Shields explained
that Tolleson has been a “model worker[,]” “respectful[,]” and wants Tolleson to get
back in society to become productive. He has seen no indication of violence from
Tolleson, describing him as “very humble.” Shields believed Tolleson should get a
sentence “as light as possible[]” so Tolleson “can get back out. I think Robert would
be an asset to this -- to the world.”
On cross-examination, the prosecutor asked Shields if his decision to hire
Tolleson would have changed had Tolleson told Shields about the sexual assault of
a child charge. Shields responded that “it may have changed[.]” Now knowing the
extent of Tolleson’s charges, Shields “doubt[s]” that he would allow his children
near Tolleson.
Ken Shelton is Tolleson’s brother-in-law. Shelton described Tolleson’s
troubled childhood, speculating that Tolleson has untreated mental health problems.
Shelton does not believe Tolleson is a sexual threat and has not seen any violence
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from Tolleson. On cross, Shelton testified that if he had known Tolleson had
admitted to sexually assaulting a child, he would not have allowed Tolleson to move
in with him.
Norm Friedrich, the CEO and president of the company Tolleson worked for,
described Tolleson as “gentle, shy, he has a great work ethic,” and is a “mildmannered individual.” Friedrich has not seen Tolleson act sexually inappropriate or
be violent. Friedrich believes Tolleson “possesses things like remorse and
compassion[.]” However, he responded that it was “a little troubling[]” that Tolleson
was twenty-eight years old at the time he sexually assaulted a fifteen-year-old child.
In its closing argument, the State asked the trial court to sentence Tolleson to
eighteen years, arguing that Tolleson is not taking accountability and responsibility
because he left an impression to people close in his life that he didn’t actually do
anything wrong. The State emphasized that “it only took him seven months to know
the victims in these cases before he tried to run one off the road and then took
advantage of her child and sexually assaulted her.”
Tolleson’s attorney argued that “he’s not served by going to prison, but
minimal is what the minimal is, Judge.” In closing arguments, Tolleson’s attorney
stated:
This case makes me sick. I don’t want him to go to prison at all. I don’t
think it’s -- the testimony’s shown that he’s had a tough life. He might
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have some other things to work on and where I was earlier on
ineffective assistance of counsel. Somebody can be snarling or
something and go, oh, she didn’t call the witnesses or anything ahead
of time. You know what, that was strategy. Because I knew what they
were going to say. I was very confident, because I’ve gotten to know
Robert, and we’ve spent a lot of time on the telephone, and when he’s
here in court.
The trial court sentenced Tolleson to five years on the aggravated assault
charge. The trial court contemplated:
Like I said, the assault with the car on the mother of the alleged victim
who is now no longer alleged based on the stipulation and admission of
Mr. Tolleson, I’m going to set that at five years, which is the minimal
that’s been agreed upon by the parties.
There was really no evidence from the PSI, there was no testimony by
the alleged victim of what damage, injuries, if any, that she had as a
result of that. She refused to go to the hospital, refused to get medical
treatment. So on that case, I’m going to go with the five years.
The trial court sentenced Tolleson to ten years on the sexual assault of the
child charge. In reaching its decision, the trial court noted:
The aggravated sexual assault of a child presents me with quite a bit of
different dilemma. There is -- one thing that generally makes a
difference between the minimal and the maximum, at least on that
offense, which is usually two to 20, is the circumstances of the actual
crime, whether or not this was something that was done repeatedly over
and over again, whether it’s something that the person has a criminal
history of, those are all things that would normally balance into a
decision on what the punishment should be.
In this case, I don’t have any evidence presented by anybody of the
circumstances concerning the 15. The PSI just says [the victim]
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received psychological evaluation of counseling for many months after
the incident and still not trusting to men.
That doesn’t do a whole lot to me to convince me what exactly the longterm effect was. I mean, many months, this thing happened back in
2018. Was many months finished up in 2019? Has there been other
problems with this child since then?
You know, I don’t have any evidence of that. I don’t have any real
evidence about the relationship between this child [] and the Defendant.
So all I’m doing right now based on what’s been presented is just taking
a shot in the dark on what should be an adequate punishment.
I have prosecuted these cases, I have defended these cases. I have
defended people that had repeatedly sexually assaulted a stepchild by
various means and methods, so I’m somewhat disappointed in the status
of the evidence that’s been presented to me by both the State and the
Defense, to make a rational decision on what the punishment should be
for Mr. Tolleson for this incident that happened back in 2018.
Mr. Tolleson, you worked in a prison system. You should have known,
for whatever happened here, you should have known what the wrong
end result would be if this happened and you got charged with it and
you come to court and you plead guilty. If I had evidence of repeated
criminal activity, continual abuse of this child, or something else, then
I would have a difficult time not giving you the 18 years, but I don’t
have any of that evidence. I don’t have really anything that mitigates
towards the maximum of the plea bargain agreement. The fact that this
is the type of case that disgusts so many people, including myself, I
can’t go along with a five year either.
At the conclusion of the hearing, the trial court sentenced Tolleson to five
years’ imprisonment on the aggravated assault with a deadly weapon charge and ten
years’ imprisonment on the sexual assault of a child charge, to run concurrently. The
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trial court certified that this “is a plea-bargain case, and the defendant has NO right
of appeal guilt innocence but will have the right to appeal sentencing.” Tolleson
timely appealed.
Analysis
In five issues, Tolleson complains that: (1) the trial court’s certification of his
right to appeal is defective and requires correction rather than dismissal; (2) he may
appeal sentencing issues based on the trial court’s permission in its certification; (3)
the trial court abused its discretion in sentencing him when it acknowledged a lack
of evidence regarding the offense’s circumstances; (4) pretrial motions were not
preserved for appellate review; and (5) he received ineffective assistance of counsel
at sentencing.
Certification of Tolleson’s Right of Appeal
Tolleson’s first and second issues relate to whether Tolleson has the right to
appeal. Because the two issues are related, we will address them together. Tolleson
argues, and the State agrees, that although the trial court’s certification does not
match the standard form in Appendix D of the Texas Rules of Appellate Procedure,
the trial court’s certification gives permission for Tolleson to appeal sentencing
issues. We agree.
Texas Rule of Appellate Procedure 25.2(a)(2) states:
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A defendant in a criminal case has the right of appeal. . . . The trial court
shall enter a certification of the defendant’s right of appeal each time it
enters a judgment of guilt or other appealable order other than an order
appealable under Code of Criminal Procedure Chapter 64. In a plea
bargain case–that is, a case in which a defendant’s plea was guilty . . .
and the punishment did not exceed the punishment recommended by
the prosecutor and agreed to by the defendant–a defendant may appeal
only:
(A) those matters that were raised by written motion filed and ruled on
before trial,
(B) after getting the trial court’s permission to appeal, or
(C) where the specific appeal is expressly authorized by statute.
Tex. R. App. P. 25.2(a)(2).
“The purpose of the certification requirement is to efficiently sort appealable
cases from non-appealable cases so that appealable cases can ‘move through the
system unhindered while eliminating, at an early stage, the time and expense
associated with non-appealable cases.’” Hargesheimer v. State, 182 S.W.3d 906, 912
(Tex. Crim. App. 2006) (quoting Greenwell v. Ct. of Appeals for the Thirteenth Jud.
Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005)). An appeal must be dismissed
if the appellate record does not include a certification that shows the defendant has
the right of appeal. Tex. R. App. P. 25.2(d).
Because Tolleson obtained the trial court’s permission, limited as it is, we
agree Tolleson has the right to appeal his sentences. See Vasquez v. State, 695
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S.W.3d 556, 559 (Tex. App.—Houston [1st Dist.] 2023, pet. ref’d) (allowing
defendant to appeal sentencing where the certification provided that defendant has
the right to appeal “sentencing only[]”); see also Tex. R. App. P. 25.2(a)(2)(B). We
overrule Tolleson’s first issue seeking to amend the certification. We sustain
Tolleson’s second issue seeking appellate review of his sentences, enabling us to
address his third, fourth and fifth issues, below.
Insufficient Evidence at Sentencing
In his third issue, Tolleson argues his due process rights were violated when
the trial court abused its discretion and sentenced Tolleson despite acknowledging a
lack of evidence regarding the circumstances surrounding the sexual assault offense.
Tolleson relies on Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984), for the
proposition that a trial court abuses its discretion when imposing punishment without
sufficient evidence. Jackson sets out as a general rule that as long as the sentence is
within the proper statutory range of punishment it will not be disturbed on appeal.
Id. at 814. In Jackson, however, the sentencing trial judge did not hear the guilty
plea testimony of the defendant, did not review a transcript of the guilty plea
testimony, and the only evidence offered was a pre-sentence investigative report
which was inadmissible and which had been properly objected to. The Jackson court
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held that the trial court abused its discretion in sentencing the defendant because the
sentence was based on no evidence:
[I]n all of the cases dealing with review in this area there was at least
some evidence or facts available to the court upon which the court could
have relied in assessing punishment. We can find no case sanctioning,
over timely objection, a particular punishment decision in which there
was no evidence of the offense, no information about the defendant, no
punishment evidence, no plea bargain; in short, nothing at all upon
which the punishment decision could have been based. We decline to
sanction such procedure and hold under the limited facts of this case
the trial judge abused his discretion when, over proper objection, he
determined the appellant’s punishment.
Id.
We review a sentence imposed by the trial court for an abuse of discretion. Id.
When the standard of review is abuse of discretion, the record must simply contain
some evidence to support the decision made by the trial court. Brumbalow v. State,
933 S.W.2d 298, 300 (Tex. App.—Waco 1996, pet. ref’d). The range of punishment
available for sexual assault of a child is a term of not more than 20 years or less than
2 years. Tex. Penal Code Ann. §§ 22.011(a)(2), (f); 12.33. As a general rule, a
sentence within the proper range of punishment will not be disturbed on appeal. See
Jackson, 680 S.W.2d at 814; Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App.
1978).
Here, the sentence in this case was within the statutory range of punishment,
and despite the trial judge’s expression of disappointment about the evidence
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submitted regarding the details surrounding the assault and the effect it had on the
child, the trial court did have evidence before it on the issue of punishment, including
the entire file, Tolleson’s judicial confession, a pre-sentence investigation report,
and testimony from seven defense witnesses. On this record, we cannot say that the
trial court abused its discretion in sentencing Tolleson. See Jackson, 680 S.W.2d at
814; Brumbalow, 933 S.W.2d at 300. We overrule Tolleson’s third issue.
Waiver
In Tolleson’s fourth issue, he complains that pretrial motions were not
preserved for review, and without proper preservation of error in the trial court, the
pretrial issues cannot be presented for appellate review. To preserve error for
appellate review, a party must present a timely objection to the trial court, state the
specific grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a). The
record before us does not indicate that the trial court ruled on any pretrial motions.
We agree with Tolleson that no pretrial issues have been preserved for our review.
That said, Tolleson’s fourth issue does not entitle Tolleson to any relief on appeal so
it is overruled.
Ineffective Assistance of Counsel
In his fifth issue, Tolleson complains that he received ineffective assistance
of counsel at sentencing because defense counsel failed to adequately prepare
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character witnesses. Specifically, he complains that some of the witnesses were
unaware that Tolleson had pleaded guilty to sexual assault of a child. Tolleson argues
that the “lack of preparation undermined their testimony when the full charges were
revealed during cross-examination.”
To prevail on a claim of ineffective assistance of counsel, an appellant must
meet a two-pronged test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,
726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Strickland requires an appellant to show
a reasonable probability that, but for his counsel’s errors, the outcome of his trial
would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). A reasonable probability is one sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694. Failure to meet either Strickland prong is fatal
to an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999).
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“Appellate review of defense counsel’s representation is highly deferential
and presumes that counsel’s actions fell within the wide range of reasonable and
professional assistance.” Bone, 77 S.W.3d at 833 (citation omitted). Appellant must
prove there was no plausible professional reason for specific acts or omissions of his
counsel. Id. at 836. “Any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1992)). Because the reasonableness of counsel’s decisions and strategy
often involves facts that do not appear in the appellate record, the record on direct
appeal is usually insufficient to support an ineffective assistance claim. Id. at 813-14. However, “when no reasonable trial strategy could justify the trial counsel’s
conduct, counsel’s performance falls below an objective standard of reasonableness
as a matter of law, regardless of whether the record adequately reflects the trial
counsel’s subjective reasons for acting as [he] did.” Andrews v. State, 159 S.W.3d
98, 102 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 690).
“In the rare case in which trial counsel’s ineffectiveness is apparent from the
record, an appellate court may address and dispose of the claim on direct appeal.”
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). When the record is
silent as to the reasoning behind an alleged deficiency by trial counsel, “we will
15
assume that counsel had a strategy if any reasonable sound strategic motivation can
be imagined.” Id.; see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001) (internal citations omitted) (“[I]n the absence of evidence of counsel’s reasons
for the challenged conduct, an appellate court . . . will not conclude the challenged
conduct constituted deficient performance unless the conduct was so outrageous that
no competent attorney would have engaged in it.”).
Generally, unless a record is created in the trial court that allows the attorney
who represented the defendant to explain the reasons a case was handled the way it
was handled at trial, the record in the direct appeal will not be sufficiently developed
for the appellant to meet their burden to establish their attorney provided ineffective
assistance of counsel in the trial unless the 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) (quotations and citations omitted).
Tolleson’s appellate counsel complains that Tolleson’s trial counsel
inadequately prepared witnesses, which prejudiced him at sentencing. During
closing argument, Tolleson’s trial counsel acknowledged that it was her strategy not
to speak with the punishment witnesses beforehand. But “[t]he mere fact that another
attorney might have tried the case differently does not support a finding of
ineffective assistance of counsel.” Graves v. State, 310 S.W.3d 924, 929 (Tex.
16
App.—Beaumont 2010, pet. ref’d). The record does not show that Tolleson filed a
motion for new trial with regard to punishment alleging ineffective assistance of
counsel. Moreover, Tolleson cannot demonstrate that, but for counsel’s alleged
errors, the outcome of his trial would have been different. See id. Nor is trial
counsel’s ineffectiveness apparent from the record. See Freeman v. State, 125
S.W.3d 505, 506-07 (Tex. Crim. App. 2003). Tolleson has failed to defeat the strong
presumption that counsel’s decisions during trial fell within the wide range of
reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Since we lack
any basis in the record before us to conclude that the alleged failures of Tolleson’s
trial counsel were “so outrageous that no competent attorney would have engaged in
it[,]” we overrule Tolleson’s fifth issue. Goodspeed, 187 S.W.3d at 392.
Conclusion
Having overruled all issues which could have entitled Tolleson to relief from
the trial court’s sentencing, we affirm the trial court’s judgments.
AFFIRMED.
KENT CHAMBERS
Justice
Submitted on August 14, 2026
Opinion Delivered August 26, 2026
Do Not Publish
Before Golemon, C.J., Johnson and Chambers, JJ.
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