                          NUMBER 13-18-00158-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JESSE NINO,                                                                 Appellant,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


                          MEMORANDUM OPINION

             Before Justices Benavides, Hinojosa, and Perkes
                Memorandum Opinion by Justice Hinojosa

      Appellant Jesse Nino appeals a judgment following a bench trial convicting him of

aggravated assault with a deadly weapon, a second-degree felony enhanced by Nino’s

prior felony convictions, see TEX. PENAL CODE ANN. §§ 12.42, 22.02, and unlawful

possession of a firearm by a felon, a third-degree felony. See id. § 46.04. The trial court

sentenced Nino to ten years’ imprisonment in the Texas Department of Criminal Justice–
Institutional Division on both counts to be served concurrently. By two issues, Nino

argues that: (1) the State failed to provide factually and legally sufficient evidence to

support his conviction for assault with a deadly weapon; and (2) the punishment assessed

by the trial court was disproportionate to the seriousness of the alleged offense. We

affirm.


                                      I.     BACKGROUND

          Nino was indicted for two counts of aggravated assault with a deadly weapon

involving separate victims and one count of unlawful possession of a firearm by a felon.

A.        Briana Nino-Benavidez

          Briana Nino-Benavidez testified that she received multiple phone calls from her

grandmother Hortencia Nino who was in an emotional state.                Benavidez went to

Hortencia’s house and entered through the back door.

          After talking with Hortencia, Benavidez had a “confrontation” with Nino, Hortencia’s

son and Benavidez’s uncle. Nino told Benavidez that she “had no business there” and

called her a “crackhead.” The two exchanged insults before they both adopted a fighting

stance. Nino left the room and returned holding a black gun. According to Benavidez,

Nino pointed the gun at both Benavidez and Hortencia while making threats. Benavidez

testified that she then grabbed a knife from the kitchen sink. Nino said “I’ll kill you if you

don’t leave” and “I’ll f—ing kill you” to both Benavidez and Hortencia. Hortencia placed

herself between them and fell back on Benavidez. During the confrontation, Benavidez

recalled that the knife flew out of her hand. Benavidez then left the house and drove



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away. Benavidez alleged that Nino threw a fire extinguisher at her car as she sped off.

B.     Jesse Nino

       Nino testified that he was at Hortencia’s house when Benavidez arrived. Nino

saw Hortencia and Benavidez “doing some sneaky [stuff].” He told them, “you–all need

to stop doing this, man. . . . You–all come over here and you–all keep doing this, I don’t

want to lose my mom.”

       After Nino confronted Benavidez, he claims she grabbed a knife from the kitchen

sink and threatened him. Benavidez then allegedly sliced Nino’s thumb before Hortencia

pushed Benavidez outside.

C.     Hortencia Nino

       Hortencia testified that she was at her house with Nino and Benavidez. Hortencia

recalled that Nino and Benavidez were arguing for about two minutes, and Nino was “just

like getting mad.” Hortencia did not see Nino exhibit a gun, but she did see that Nino

had something in his hand during the argument.          Hortencia testified that she saw

Benavidez holding a knife, which Benavidez pointed toward Nino. Hortencia tried to

separate the two, and she told Benavidez to “take care of [her] babies.” Benavidez left

the house, and the police arrived shortly thereafter.

D.     Officer Testimony

       Corpus Christi Police Department officers arrived and arrested Nino.          After

searching Hortencia’s house, they discovered two firearms.




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E.      Verdict and Sentencing

        The trial court found Nino guilty of unlawful possession of a firearm by a felon and

one of two counts of aggravated assault with a deadly weapon; however, the trial court

acquitted Nino of his second count of aggravated assault with a deadly weapon. The

trial court sentenced Nino to ten years’ imprisonment in the Texas Department of Criminal

Justice–Institutional Division on both counts to be served concurrently. This appeal

followed.

                               II.     SUFFICIENCY OF THE EVIDENCE

        Nino’s first issue challenges the legal sufficiency of the evidence supporting his

conviction for aggravated assault with a deadly weapon. 1

A.      Standard of Review and Applicable Law

        When reviewing the legal sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict and determine whether a rational factfinder could have

found the elements of the offense beyond a reasonable doubt. Gear v. State, 340

S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–

19, (1979)). In conducting our review, we consider all evidence in the record, whether it

was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.

2013). We also consider direct and circumstantial evidence, as well as any reasonable

inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778


        1 Nino purports to challenge both the legal and factual sufficiency of the evidence. However, the

Texas Court of Criminal Appeals has abolished factual sufficiency review. Howard v. State, 333 S.W.3d
137, 138 n.2 (Tex. Crim. App. 2011) (citing Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App.
2010) (plurality op.)). Therefore, we will address only Nino’s legal sufficiency challenge.



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(Tex. Crim. App. 2007).

       Under this review, we do not re-evaluate the weight and credibility of the evidence

or substitute our judgment for that of the factfinder. See Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). Because the trial judge, when sitting as the sole trier

of fact, is the exclusive judge of the credibility of witnesses and of the weight given to their

testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the

verdict. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 2000) (citing Mattias v.

State, 731 S.W.3d 936, 940 (Tex. Crim. App. 1987)).

B.     Analysis

       A person commits an assault if the person “intentionally or knowingly threatens

another with imminent bodily injury[.]” See TEX. PENAL CODE § 22.01(a)(2). An assault

is elevated to an aggravated assault if the person “uses or exhibits a deadly weapon

during the commission of the assault.” Id. § 22.02(a)(2). A firearm is a deadly weapon

per se. Id. § 1.07(a)(17)(A).

       Nino argues that the evidence was not sufficient to support the finding that he

threatened Benavides with a firearm because her testimony was not credible. However,

we do not re-evaluate the weight and credibility of the evidence or substitute our judgment

for that of the factfinder.    Gear, 340 S.W.3d at 746.         We resolve any conflicts or

inconsistencies in the evidence in the light most favorable to the verdict.

Joseph, 897 S.W.2d at 376. We must presume, therefore, that the trial court resolved

the conflicting testimony between Nino and Benavidez in favor of Benavidez.




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       First, Benavidez testified that Nino had a gun in his hand and “was waving it

around.” Second, Benavidez testified that “[Nino] entered the room, he had [the gun]

pointed at me” and that he told her “I’ll kill you if you don’t leave.” Because Nino entered

the room, displaying a handgun, which is per se a deadly weapon, and threatened

Benavidez with it by pointing it at her, the evidence is legally sufficient to establish that

Nino threatened Benavidez with a deadly weapon.

       We conclude that a rational trier of fact could have found that the State established

each element of the offense beyond a reasonable doubt. See Gear, 340 S.W.3d at 746;

see also Mancillas v. State, No. 13-17-00005-CR, 2018 WL 3470637, at *3 (Tex. App.—

Corpus Christi–Edinburg July 19, 2018, pet. ref’d) (mem. op., not designated for

publication) (holding that the act of pointing a gun at an individual is, by itself, threatening

conduct which supports a conviction for aggravated assault). Accordingly, we overrule

Nino’s first issue.

                          III.   CRUEL AND UNUSUAL PUNISHMENT

       In his second issue, Nino contends that his punishment assessed by the trial court

was disproportionate to the seriousness of the alleged offense, in violation of the Eighth

Amendment.

A.     Standard of Review and Applicable Law

       The Eighth Amendment of the United States Constitution provides that “[e]xcessive

bail shall not be required, nor excessive fines, nor cruel and unusual punishment inflicted.”

U.S. CONST. amend. VIII. The Eighth Amendment applies to punishments imposed by




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the state courts through the Due Process Clause of the Fourteenth Amendment. U.S.

CONST. amend. XIV. A punishment within the limits prescribed by a valid statute “is not,

per se, prohibited as cruel, unusual, or excessive.” Trevino v. State, 174 S.W.3d 925,

928 (Tex. App.—Corpus Christi–Edinburg 2005, pet. ref’d). And when a sentence is

within the prescribed statutory range set down by the legislature, sentencing authorities

have nearly unfettered discretion to impose any punishment within that range. Ex parte

Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006).

B.     Preservation

       The right to be free from cruel and unusual punishment and almost every

constitutional or statutory right can be waived by failure to object. Smith v. State, 721

S.W.2d 844, 855 (Tex. Crim. App. 1986); see also Barnhart v. State, No. 13-18-00176-

CR, 2018 WL 4100823, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 29, 2018, no

pet.) (mem. op., not designated for publication).         To preserve a complaint of

disproportionate sentencing, the criminal defendant must make a timely, specific

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

33.1(a); Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that the

defendant forfeited their cruel and unusual punishment issue because no objection was

made at trial).

       Nino did not object when the trial court imposed the sentence and did not complain

in any post-trial motion that the sentence was disproportionate to the offense or violated

the Eighth Amendment.       Therefore, Nino failed to preserve this issue for appeal.




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See TEX. R. APP. P. 33.1(a); Rhoades, 934 S.W.2d at 120.

C.     Cruel and Unusual Punishment

       Even if Nino had preserved error, his issue is without merit because the

punishments for both his convictions fall within the legal range set forth by the state

legislature. An aggravated assault is a second-degree felony, however “if it is shown on

the trial of a second-degree felony that the defendant has previously been finally

convicted of a felony… the defendant shall be punished for a felony of the first degree.”

TEX. PENAL CODE ANN. § 12.42(b). An individual found “guilty of a felony of the first

degree shall be punished by imprisonment in the Texas Department of Criminal Justice

for life or for any term of not more than 99 years or less than 5 years.” Id. § 12.32(a).

Unlawful possession of a firearm by a felon is a felony of the third degree. Id. § 46.04(e).

An individual found “guilty of a felony of the third degree shall be punished by

imprisonment in the Texas Department of Criminal Justice for any term of not more than

10 years or less than 2 years.” Id. § 12.34(a).

       First, because Nino is a previously convicted felon, his conviction of aggravated

assault with a deadly weapon was punished as a first-degree felony. See id. § 12.42(a).

Accordingly, his sentence of ten years’ imprisonment is well within the legal range set by

statute. See id. § 12.32(a). In addition, Nino’s punishment of ten years’ imprisonment

for unlawful possession of a firearm by a felon falls within the legal punishment range for

a third-degree felony. See id. § 12.34(a). As both punishments fall within the legal

range, the sentences are not prohibited as per se excessive, cruel or unusual; therefore,




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the trial court possessed nearly unfettered discretion to impose any punishment within

that range. See Trevino, 175 S.W.3d at 928; see also Ex parte Chavez, 213 S.W.3d at

323. We overrule Nino’s second issue.

                                 IV.    CONCLUSION

       Having overruled both of Nino’s issues on appeal, we affirm the trial court’s

judgment.

                                                           LETICIA HINOJOSA
                                                           Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of July, 2019.




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