           NUMBERS 13-19-00134-CR & 13-19-00135-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JUSTIN JONES,                                                               Appellant,

                                                v.

THE STATE OF TEXAS,                                                           Appellee.


                       On appeal from the 214th District Court
                             of Nueces County, Texas.


                         MEMORANDUM OPINION
              Before Justices Benavides, Perkes, and Tijerina
                 Memorandum Opinion by Justice Tijerina

      In appellate cause number 13-19-00134-CR, appellant Justin Jones pleaded guilty

to aggravated assault with a deadly weapon, a second-degree felony. See TEX. PENAL

CODE ANN. § 22.02(a)(2). In appellate cause number 13-19-00135-CR, he pleaded guilty

to one count of assault family violence with a previous conviction, a third-degree felony,

and one count of aggravated assault of a family member with a deadly weapon, a first-
degree felony. See id. §§ 22. 01(b)(2), .02(b)(1). By his first issue in cause number 13-

19-00134-CR, Jones argues that the evidence is insufficient to support his conviction for

first-degree aggravated assault pursuant to Article 1.15 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 1.15. In both causes, Jones contends

that the sentences were excessive. We affirm in both cause numbers.

                                     I.      BACKGROUND

       On February 28, 2019, Jones pleaded guilty to all three offenses without a plea

agreement. Neither Jones nor the State called any witnesses at the sentencing hearing.

Jones informed the trial court that he had a history of mental illness and requested

deferred adjudication. After considering the evidence and argument of the parties, the

trial court assessed punishment at twenty years’ imprisonment for the second-degree

felony; forty years for the first-degree felony; and ten years for the third-degree felony to

run concurrently.

                               II.        JUDICIAL CONFESSION

       By his first issue in cause number 13-19-00134-CR, Jones argues that the

evidence is insufficient to support his conviction for first-degree aggravated assault

because he admitted to causing “bodily injury” as opposed to “serious bodily injury.”

       In connection with his guilty plea, Jones executed a judicial confession that

provided,

       On this day in open Court, I, JUSTIN JONES, waive my right against self-
       incrimination and hereby judicially confess that on May 24, 2018, in Nueces
       County, Texas, I, JUSTIN JONES, then and there intentionally, knowingly,
       or recklessly cause[d] bodily injury to Manuela Aguilar by striking [Aguilar]
       with a deadly weapon, and the defendant did then and there use or exhibit
       a deadly weapon, to-wit: a length of wood, during the commission of said
       assault,; did then and there intentionally, knowingly, and recklessly cause
       bodily injury to Manuela Aguilar, a person with whom the defendant had or

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      had had a dating relationship, as described by Section 71.0021 of the Texas
      Family Code, by striking Manuela Aguilar with defendant’s hands and/or a
      length of wood, and before the commission of the charged offense, the
      defendant had previously been convicted of an offense under Chapter 22
      of the Texas Penal Code, against a member of the defendant’s family, as
      described by Section 71 of the Texas Family Code, to-wit: on the
      1/25/2018, in the County Court at Law number 4 of Nueces County, Texas,
      in cause number 17MC-02837, I hereby agree and stipulate that the facts
      contained in this instrument and its attached exhibits, if any, are true and
      correct.

(Emphasis added.)

      Texas Code of Criminal Procedure Article 1.15 provides,

      No person can be convicted of a felony except upon the verdict of a jury
      duly rendered and recorded, unless the defendant, upon entering a plea,
      has in open court in person waived his right of trial by jury in writing in
      accordance with Articles 1.13 and 1.14; provided, however, that it shall be
      necessary for the state to introduce evidence into the record showing the
      guilt of the defendant and said evidence shall be accepted by the court as
      the basis for its judgment and in no event shall a person charged be
      convicted upon his plea without sufficient evidence to support the same.
      The evidence may be stipulated if the defendant in such case consents in
      writing, in open court, to waive the appearance, confrontation, and cross-
      examination of witnesses, and further consents either to an oral stipulation
      of the evidence and testimony or to the introduction of testimony by
      affidavits, written statements of witnesses, and any other documentary
      evidence in support of the judgment of the court. Such waiver and consent
      must be approved by the court in writing, and be filed in the file of the papers
      of the cause.

TEX. CODE CRIM. PROC. ANN. art. 1.15. Evidence supporting a guilty plea “may take many

forms,” including a judicial confession or the defendant testifying in open court, where he

admits his culpability or acknowledges generally that the allegations against him are true

and correct. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009).

      Where, as here, the defendant specifically states in his judicial confession and

stipulation to discovery that he has reviewed and acknowledged the “documents, reports,

and information attached” and the attached indictment sets out the relevant elements of



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the offense, evidence supporting a guilty plea has been satisfied. Chindaphone v. State,

241 S.W.3d 217, 220 (Tex. App.—Fort Worth 2007, pet. ref’d). The indictment against

Jones charged that he “intentionally, knowingly, or recklessly cause[d] serious bodily

injury to Manuela Aguilar by striking [her] in the head [with] a deadly weapon, to-wit: length

of wood” at the time when he and Manuela were in a dating relationship. The indictment

precisely tracked the statutory language of section 22.02 of the penal code. See TEX.

PENAL CODE ANN. § 22.02.

       In addition to Jones’s judicial confession, Jones testified in open court that he

understood the allegations against him “to the charge of first-degree felony, aggravated

assault family violence with a deadly weapon.” Moreover, he admitted his culpability

regarding this charge. 1 After the trial court accepted his guilty plea, it reviewed evidence

that Manuela was seen at a hospital after the assault, and it reviewed the police report,

which provided that Jones used a 2x4 piece of wood, his fists, and his feet to injure

Manuela. At sentencing, the trial court reiterated that Jones would be sentenced for

“aggravated assault family violence with deadly weapon and serious bodily injury on count

one” to which Jones acknowledged that he understood.

       We conclude that Jones’s signed judicial confession and stipulations as well as the

evidence presented to the trial court, are sufficient to support “serious bodily injury.” We

therefore overrule his first issue in cause number 13-19-00134-CR.

                                        III.   SENTENCING

       In cause numbers 13-19-00134-CR and 13-19-00135-CR, Jones argues that his


       1 The trial court asked Jones why he assaulted Manuela to which Jones responded, “I thought she

was cheating on me and at the same time she was getting to my head like saying a lot of negative stuff
towards me.”


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sentences were excessive.

        The right to be free from cruel and unusual punishment can be waived by failure

to object. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (en banc);

Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.—Corpus Christi–Edinburg 1989, pet.

ref’d) (holding that the defendant waived his cruel and unusual punishment argument by

failing to object); see also Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston

[1st Dist.] 2007, pet. ref’d) (concluding that by failing to object, the appellant did not

preserve an argument that the sentence was grossly disproportionate to offense). To

preserve a complaint of cruel and unusual punishment, the defendant must make a timely,

specific objection to the trial court or raise the issue in a motion for new trial. See TEX. R.

APP. P. 33.1(a); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet.

ref’d); Noland, 264 S.W.3d at 151–52; see also Trevino v. State, 174 S.W.3d 925, 927–

28 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d) (“Because the sentence

imposed is within the punishment range and is not illegal, we conclude that the rights

[appellant] asserts for the first time on appeal are not so fundamental as to have relieved

him of the necessity of a timely, specific trial objection.”).

        Jones did not object when the trial court imposed the sentences and did not

complain in any post-trial motion that the sentences were excessive or violated the Eighth

Amendment. 2 Thus, Jones failed to preserve this issue for our review. See TEX. R. APP.

P. 33.1; Smith, 721 S.W.2d at 855; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151–

52; Trevino, 174 S.W.3d at 927–28; Quintana, 777 S.W.2d at 479. Even if Jones had



        2 We note that Jones filed a motion for new trial based on ineffective assistance of counsel stating
his attorney failed to introduce mitigating evidence at sentencing. The trial court denied the motion for new
trial.

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preserved error for our review, he was convicted of aggravated assault with a deadly

weapon, a first-degree felony, which is punishable by imprisonment for life or for any term

of not more than ninety-nine years or less than five years; aggravated assault with a

deadly weapon, a second-degree felony, which is punishable by imprisonment for any

term of not more than twenty years or less than two years; and assault family violence

with a previous conviction, a third-degree felony, which is punishable by imprisonment for

any term of not more than ten years or less than two years. See TEX. PENAL CODE ANN.

§§12.32–.34. Therefore, his sentences of forty, twenty, and ten years are within the

punishment range. See Trevino, 174 S.W.3d at 927. We overrule Jones’s issue in both

appellate cause numbers.

                                   IV.     CONCLUSION

       We affirm the judgment of the trial court.

                                                                JAIME TIJERINA,
                                                                Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
26th day of March, 2020.




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