AFFIRMED and Opinion Filed May 5, 2020




                                        In The
                               Court of Appeals
                        Fifth District of Texas at Dallas

                                No. 05-18-01024-CR

                JESSICA JEWEL CORIN BENTON, Appellant
                                 V.
                     THE STATE OF TEXAS, Appellee

               On Appeal from the Criminal District Court No. 6
                            Dallas County, Texas
                    Trial Court Cause No. F-1641572-X

                        MEMORANDUM OPINION
              Before Justices Bridges, Molberg, and Partida-Kipness
                       Opinion by Justice Partida-Kipness
      A jury convicted appellant Jessica Jewel Corin Benton of continuous sexual

abuse of a child younger than 14 years of age and sentenced Benton to 60 years’

confinement. See TEX. PENAL CODE ANN. § 21.02. By statute, Benton is ineligible

for parole. See TEX. GOV’T CODE ANN. § 508.145(a). In three issues, Benton

contends: (1) section 21.02 violates the Eighth Amendment prohibition on cruel and

unusual punishment; (2) the trial court erred by including a definition of “reasonable

doubt” in the jury charge; and (3) the trial court lacked jurisdiction to hear the case

because it was not properly transferred to the court’s docket. We affirm the trial

court’s judgment.
                                BACKGROUND

      Benton was a teacher’s aide at the elementary school that complainant K.C.

attended. While K.C. was in fifth grade, Benton began inviting K.C. and his younger

brother to stay at her house. With their mother’s consent, the children did so. Over

the course of three months, K.C. stayed with Benton several times, during which

Benton engaged in sexual intercourse with K.C. more than ten times.

      Benton’s roommate’s daughter witnessed one such encounter and informed

her mother the next day. The mother reported it to the school counselor who

interviewed the daughter and reported the outcry to police. Police interviewed K.C.

and obtained a warrant for Benton’s arrest based on information obtained from K.C.

      Benton was arrested, waived her rights, and admitted to the sexual

relationship. A subsequent forensic sexual assault examination of Benton produced

sperm-cell DNA evidence that did not rule out K.C. as the contributor of the

specimen.

      A grand jury indicted Benton for continuous sexual assault of a child younger

than 14 years of age. See TEX. PENAL CODE ANN. § 21.02 (requiring two or more

acts of sexual abuse over 30 or more days). Benton was tried, and on August 23,

2018, a jury convicted and sentenced her to 60 years’ confinement. Benton is not

eligible for parole. See TEX. GOV’T CODE ANN. § 508.145 (denying parole for

convictions under section 21.02).



                                        –2–
         Benton filed a timely motion for new trial on September 24, 2018, claiming

that section 508.145 “violates equal protection” under article 1, sections 3 and 13,

of the Texas Constitution. According to Benton’s motion, the statute has no rational

basis to deny parole to someone who commits continuous sexual assault over 30

days but allows parole to someone who does so over only 29 days. At the hearing

on Benton’s motion, held on November 2, 2018, and November 6, 2018, Benton

clarified that her motion should have referred only to article 1, section 13, of the

Texas Constitution and offered her equal-protection argument. Benton then added

two new arguments: the statute violated (1) her “fundamental liberty interest in

parole” and (2) the Eighth Amendment prohibition on cruel and unusual punishment.

On November 5, 2018, the State filed a written objection that Benton’s motion did

not include her two new arguments made at the hearing. The trial court denied

Benton’s motion, and this appeal followed.

                                    ANALYSIS

         A.    Eighth Amendment

         In her first issue, Benton contends that section 21.02 violates the Eighth

Amendment prohibition on cruel and unusual punishment. According to Benton,

the statute “violates the proportionality principle applicable to noncapital cases

enunciated in Graham v. Florida, 560 U.S. 61, 67 (2010).” The State contends that

Benton has forfeited this issue because it was not included in her motion for new

trial.

                                         –3–
      “Even constitutional rights, including the right to be free from cruel and

unusual punishment, may be waived.” Davis v. State, 323 S.W.3d 190, 196 (Tex.

App.—Dallas 2008, pet. ref’d); see also Toledo-Argueta v. State, No. 05-18-00387-

CR, 2019 WL 3072176, at *3 (Tex. App.—Dallas July 15, 2019, no pet.) (mem. op.,

not designated for publication). To preserve error for appellate review, the record

must show that appellant made a timely request, objection, or motion. TEX. R. APP.

P. 33.1(a)(1).

      A defendant must file a motion for new trial “no later than thirty days after

the date when the trial court imposes or suspends sentence in open court.” TEX. R.

APP. P. 21.4(a). “The motion can be amended at any time during that thirty-day

period, but the trial court is barred from considering a ground raised outside the

thirty-day period if the State properly objects.” State v. Arizmendi, 519 S.W.3d 143,

150 (Tex. Crim. App. 2017); TEX. R. APP. P. 21.4(b).

      “‘[A]n essential element of [a motion for new trial] is that the matter of error

relied upon for a new trial must be specifically set forth therein.’” State v. Zalman,

400 S.W.3d 590, 594 (Tex. Crim. App. 2013) (quoting Harvey v. State, 201 S.W.2d

42, 45 (1947)). This requirement is designed to give the court sufficient “notice to

prepare for the hearing and make informed rulings and to allow the State enough

information to prepare a rebutting argument.” Id. “[I]t is error for the trial court to

rule on an untimely amendment over a proper objection.” Id. at 595 (holding the

trial court abused its discretion in granting a new trial based on defendant’s argument
                                          –4–
at hearing that evidence was improperly admitted when defendant’s motion

contested only the sufficiency of the admitted evidence).

      To the extent that Benton’s additional issues offered at the hearing, which

included the Eighth Amendment argument she makes on appeal, constitute

amendments to her motion, they were untimely, and the trial court could not consider

them. See Zalman, 400 S.W.3d at 595; TEX. R. APP. P. 21.4(b). Consequently,

Benton did not preserve error on these issues. See State v. Moore, 225 S.W.3d 556,

570 (Tex. Crim. App. 2007) (restricting appellate review to “the validity of the

original and any timely amended motion for new trial”); Shamim v. State, 443

S.W.3d 316, 328 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Pinales v. State,

No. 05-01-00765-CR, 2002 WL 77256, at *6 (Tex. App.—Dallas Jan. 22, 2002, no

pet.) (not designated for publication) (holding an issue presented in an untimely

amendment to a motion for new trial was a “nullity” that would not be addressed on

appeal).

      Even if Benton’s challenge was not waived, this Court and many of our sister

courts have rejected her Eighth Amendment argument. See Barroquin-Tabares v.

State, No. 05-15-00794-CR, 2016 WL 3144160, at *3 (Tex. App.—Dallas May 31,

2016, no pet.) (mem. op., not designated for publication) (“We agree that the

categorical ban on the availability of parole for a person convicted of continuous

sexual abuse of a young child does not violate the Eighth Amendment.”); Smith v.

State, No. 05-16-01318-CR, 2018 WL 3424388, at *6 (Tex. App.—Dallas July 16,
                                        –5–
2018) (mem. op., not designated for publication) (“[A]ppellant argues his sentence

and the no parole provision in his sentence violate his constitutional protection

against cruel and unusual punishment. This argument has previously been

considered and rejected.”) (citing Barroquin-Tabares and Glover v. State, 406

S.W.3d 343, 347–50 (Tex. App.—Amarillo 2013, pet. ref’d)); DeLeon v. State, No.

03-13-00202-CR, 2015 WL 3454101, at *9 (Tex. App.—Austin May 29, 2015, pet.

ref’d) (mem. op., not designated for publication).       Accordingly, we overrule

Benton’s first issue.

      B.     Reasonable Doubt Instruction

      In her second issue, Benton contends that the trial court committed structural

error by providing the jury with a definition of “reasonable doubt.” We disagree.

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649

(Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether

error occurred; if error did not occur, our analysis ends. Id. If error did occur,

whether it was preserved determines the degree of harm required for reversal. Id.

      “A ‘structural error’ is not subject to a harmless-error test.” Mendez v. State,

138 S.W.3d 334, 339 (Tex. Crim. App. 2004). Structural errors exist in “only in a

very limited class of cases,” including “erroneous reasonable-doubt instruction to

jury.” Johnson v. United States, 520 U.S. 461, 468 (1997) (citing Sullivan v.

Louisiana, 508 U.S. 275 (1993)).
                                         –6–
         The record reflects that the trial court instructed the jury that “[a]ll persons are

presumed innocent, and no person may be convicted of an offense unless each

element of the offense is proven beyond a reasonable doubt.” The instructions

continued:

         The prosecution has the burden of proving the defendant guilty and it must do so by proving each
         element as charged beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.
         However, it is not required that the prosecution prove guilt beyond all possible doubt; it is only
         required that the prosecution's proof exclude all reasonable doubt concerning the defendant’s guilt.

Benton contends that the last sentence constitutes a definition of “reasonable doubt,”

which the Texas Court of Criminal Appeals has forbidden trial courts from

providing.

         We and other courts have held that this instruction “‘simply states the legally

correct proposition that the prosecution’s burden is to establish appellant’s guilt

beyond a reasonable doubt and not all possible doubt.’” Wilson v. State, No. 05-18-

00801-CR, 2019 WL 3491931, at *3 (Tex. App.—Dallas Aug. 1, 2019, no pet.)

(mem. op., not designated for publication) (collecting cases and quoting O’Canas v.

State, 140 S.W.3d 695, 702 (Tex. App.—Dallas 2003, pet. ref’d)). The language at

issue merely instructs the jury that it is the State’s burden to prove the elements of

the crime for which Benton was charged beyond a reasonable doubt. We conclude

the instruction did not constitute jury charge error, and we overrule Benton’s second

issue.

         C.       Jurisdictional Challenge



                                                         –7–
       In her third issue, Benton contends that the trial court lacked jurisdiction

because the case was originally presented for indictment in a different trial court,

and there were no written orders transferring the case to the court that tried the case

and rendered judgment. We disagree.

       When a defendant fails to file a plea to the jurisdiction, she waives any right

to complain that a transfer order does not appear in the record. See Mills v. State,

742 S.W.2d 831, 834–35 (Tex. App.—Dallas, 1987, no writ.); Lemasurier v. State,

91 S.W.3d 897, 899 (Tex. App.—Fort Worth 2002, pet. ref’d). Benton did not file

a plea to the jurisdiction in this case.

       Further, even if Benton had preserved her complaint for our review, this Court

has considered and rejected this argument on numerous occasions, and we do so

again today. See Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005,

pet. ref’d) (cases returned by a grand jury are not necessarily assigned to the court

that impaneled the grand jury); Wilson, 2019 WL 3491931 at *4 (collecting cases).

       Moreover, the record reflects that the indictment was presented to a grand jury

in the same court in which judgment of conviction was entered: Criminal District

Court No. 6. Thus, Criminal District Court No. 6 had jurisdiction to hear Benton’s

case and render judgment. We overrule Benton’s third issue.




                                           –8–
                                 CONCLUSION

      Having overruled all of Benton’s issues, we affirm the trial court’s judgment.



                                      /Robbie Partida-Kipness/
                                      ROBBIE PARTIDA-KIPNESS
                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
181024F.U05




                                        –9–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

JESSICA JEWEL CORIN BENTON,                   On Appeal from the Criminal District
Appellant                                     Court No. 6, Dallas County, Texas
                                              Trial Court Cause No. F-1641572-X.
No. 05-18-01024-CR          V.                Opinion delivered by Justice Partida-
                                              Kipness. Justices Bridges and
THE STATE OF TEXAS, Appellee                  Molberg participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 5th day of May, 2020.




                                       –10–
