Opinion filed July 7, 2023

In The

Eleventh Court of Appeals __________

No. 11-21-00268-CR

__________

AUSTIN RAY JORDAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 32nd District Court

Nolan County, Texas

Trial Court Cause No. 13136

M E M O R A N D U M O P I N I O N

On October 26, 2020, Appellant pleaded guilty to the charge of aggravated 

assault, a second-degree felony. See TEX. PENAL CODE ANN. 22.02(a), (b) (West 

Supp. 2022). Pursuant to the terms of a plea agreement, the trial court deferred 

adjudication and placed Appellant on community supervision for four years and 

assessed a fine of $2,000. Subsequently, the State filed a motion to proceed with an 

adjudication of guilt wherein it alleged two violations of the terms and conditions of 
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Appellant’s deferred adjudication community supervision. However, the State 

abandoned one of those allegations at the hearing on the motion. The hearing 

proceeded on the remaining allegation—that while on deferred adjudication 

community supervision, Appellant committed the offense of assault causing bodily 

injury by “headbutt[ing]” his mother and striking her multiple times in the face with 

his open hand. The trial court found the allegation to be true and it revoked 

Appellant’s community supervision, found him guilty of the charged offense, and 

assessed his punishment at confinement for a term of sixteen years in the 

Institutional Division of the Texas Department of Criminal Justice. We modify and 

affirm. 

Background Facts

In 2020, Appellant pleaded guilty to the second-degree felony offense of 

aggravated assault. At the hearing, Appellant confirmed that he committed the 

offense as charged in the indictment: that he stabbed the victim in the chest with a 

knife. Appellant testified that the victim was a friend and that they “were just doing 

drugs together.”

At the hearing on the motion to proceed with an adjudication of guilt, the trial 

court took judicial notice of an expert report that confirmed Appellant’s competency 

to stand trial. Appellant’s mother testified that Appellant had been diagnosed with 

“meth-induced” schizophrenia and was prescribed medication. She testified that

Appellant had been involuntarily committed to several mental health treatment 

centers prior to his community supervision. His mother stated that Appellant refused 

to take his medication as prescribed and refused to comply with the treatment plan 

provided by MHMR.

Appellant’s mother testified that, in May 2021, she came home to find that 

Appellant had caused significant damage to her residence. Appellant’s mother 

confronted Appellant and she subsequently called the police when Appellant 
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headbutted her in the face, causing her pain. While she was on the phone with the 

operator, Appellant continued to hit his mother on the head with his hands. The 

officer who responded to the call testified that he observed Appellant displaying 

erratic behavior when he arrived at the residence. Appellant’s mother testified that 

she had a headache for about a week afterwards.

At the hearing, Appellant’s mother requested, and was subsequently granted, 

a lifetime protective order against Appellant. She stated the reason that she sought 

the order was because she did not want to live in fear. At the conclusion of the 

hearing, the trial court found that Appellant had violated the terms of his community 

supervision and found him guilty of the original offense of aggravated assault. 

Analysis

In his sole issue, Appellant contends that the term of his punishment was 

excessive and violated his right under the Eighth Amendment to be free from cruel 

and unusual punishment. See U.S. CONST. amend. VIII. Appellant contends that his 

sentence of imprisonment is “unjust” and “grossly disproportionate” for three 

reasons: his youth at the time of the offense; the mental illness from which he suffers; 

and that the victim of the original offense did not desire his prosecution. Appellant 

argues that his sentence violated Article I, Section 13 of the Texas constitution for 

the same reasons. See TEX. CONST. art. I, § 13. Because there is “no significance in 

the difference between the Eighth Amendment’s ‘cruel and unusual’ phrasing and 

the ‘cruel or unusual’ phrasing of Art. I, Sec. 13 of the Texas Constitution[,]” we 

address Appellant’s complaints together. Cantu v. State, 939 S.W.2d 627, 645 (Tex. 

Crim. App. 1997). The State argues that Appellant did not preserve this issue for 

appeal, and that, even if it were preserved, the sentence did not constitute cruel and 

unusual punishment. 
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To preserve a complaint that a sentence constitutes cruel and unusual 

punishment, a defendant must first raise the issue to the trial court by a “timely 

request, objection, or motion” stating grounds for the desired ruling and the trial 

court must either rule or refuse to rule on the request, objection, or motion. TEX. R.

APP. P. 33.1(a)(1), (2); Jones v. State, No. 11-19-00251-CR, 2021 WL 3413794, at 

*1 (Tex. App.—Eastland Aug. 5, 2021, no pet.) (mem. op., not designated for 

publication). An appellant may also preserve a sentencing issue by raising it in a 

motion for new trial. Jones, 2021 WL 3413794, at *2. Appellant did not object to 

his sentence on any grounds at the time the trial court pronounced the sentence, but 

Appellant did present his appellate complaint in his motion for new trial. Therefore, 

Appellant preserved his appellate issue for our review.

When we review a trial court’s sentencing determination, “a great deal of 

discretion is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814 

(Tex. Crim. App. 1984). We will not disturb a trial court’s decision as to punishment 

“absent a showing of abuse of discretion and harm.” Id. (citing Hogan v. State, 529 

S.W.2d 515 (Tex. Crim. App. 1975)). 

Appellant pleaded guilty to the second-degree felony offense of aggravated 

assault. The punishment range for this offense is imprisonment for a term of two to 

twenty years and a fine no greater than $10,000. PENAL § 12.33 (West 2019). 

Therefore, Appellant’s sixteen-year sentence and $2,000 fine falls squarely within 

the statutory range of punishment. 

Generally, “punishment assessed within the statutory limits . . . is not 

excessive, cruel, or unusual.” State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. 

App. 2016). However, a sentence that is within the applicable range of punishment 

might be cruel or unusual in the “exceedingly rare” or “extreme” case in which the 

sentence is grossly disproportionate to the offense. Lockyer v. Andrade, 538 U.S. 

63, 73 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, 
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J., concurring)); Solem v. Helm, 463 U.S. 277, 287 (1983). “The gross 

disproportionality principle reserves a constitutional violation for only the 

extraordinary case.” Lockyer, 538 U.S. at 77.

“To determine whether a sentence for a term of years is grossly 

disproportionate for a particular defendant’s crime, a court must judge the severity 

of the sentence in light of the harm caused or threatened to the victim, the culpability 

of the offender, and the offender’s prior adjudicated and unadjudicated offenses.” 

Simpson, 488 S.W.3d at 323 (citing Graham v. Florida, 560 U.S. 48, 60 (2010)). 

“In the rare case in which [the] threshold comparison leads to an inference of gross 

disproportionality, the court should then compare the defendant’s sentence with the 

sentences received by other offenders in the same jurisdiction and with the sentences 

imposed for the same crime in other jurisdictions.” Id. (citing Graham, 560 U.S. at 

60). “If this comparative analysis validates an initial judgment that the sentence is 

grossly disproportionate, the sentence is cruel and unusual.” Id. (citing Graham, 

560 U.S. at 60).

The Eighth Amendment prohibits sentences that are “grossly 

disproportionate” to the offense for which the defendant has been convicted. 

Bradfield v. State, 42 S.W.3d 350, 353 (Tex. App.—Eastland 2001, pet. ref’d) (citing 

Harmelin, 501 U.S. at 959). To evaluate the proportionality of a sentence, the first 

step is for us to make a threshold comparison between the gravity of the offense and 

the severity of the sentence. Id. When analyzing the gravity of the offense, we 

examine the harm caused or threatened to the victim or society and the culpability 

of the offender. See, e.g., Hooper v. State, No. 11-10-00284-CR, 2011 WL 3855190, 

at *3 (Tex. App.—Eastland Aug. 31, 2011, pet. ref’d) (mem. op., not designated for 

publication) (citing Solem, 463 U.S. at 291–92). Only if grossly disproportionate to 

the offense, must we then compare Appellant’s sentence with the sentences received 
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for similar crimes in this jurisdiction or in other jurisdictions. Bradfield, 42 S.W.3d 

at 353–54.

We begin our analysis of Appellant’s sentence by noting that by stabbing the 

victim in the chest with a knife, Appellant committed an act of great severity that 

posed a significant risk to the life of another. Additionally, the record established 

that Appellant committed another violent act upon his mother while on deferred 

adjudication community supervision. The record also indicates that Appellant 

refused to comply with the continued attempts at treatment of his mental illness, and 

that his mother’s fear of him was so great that she sought and obtained a permanent 

protective order against him. 

The evidence presented at trial does not indicate an abuse of discretion of the 

trial court in sentencing Appellant to confinement for sixteen years—a term less than 

the maximum permitted for the offense. One of the goals of the Penal Code is to 

ensure the public safety through deterrence, rehabilitation, and punishment. See

PENAL § 1.02(1) (West 2021). Considering the gravity of Appellant’s offense, his 

conduct while on community supervision, and the damage brought as a result of his 

actions, we cannot hold that the sentence imposed by the trial court was grossly 

disproportionate to the crime to which Appellant pleaded guilty. Furthermore, the 

sentence serves the goal of protecting the public safety. Consequently, we need not 

compare Appellant’s sentence with the sentences received for similar crimes in this 

or other jurisdictions. See Simpson, 488 S.W.3d at 323. Accordingly, we overrule 

Appellant’s sole issue on appeal. 

We note, however, that the trial court’s judgment incorrectly reflects that 

Appellant pleaded “TRUE” to the motion to adjudicate, and that it also incorrectly 

reflects that there was a plea bargain agreement. The record reflects that Appellant 

did not affirmatively enter a plea of “true” or “not true” to the allegations and that a 

contested hearing was held. An appellate court has the power to modify the trial 
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court’s judgment to make the judgment speak the truth when it has the necessary 

information before it to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 

S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Because we have the necessary 

information to make the judgment speak the truth, we modify the judgment of the 

trial court to delete “TRUE” in the section titled “Plea to Motion to Adjudicate” and 

to delete “FIVE (5) YEARS INSTITUTIONAL DIVISION” in the section titled 

“Terms of Plea Bargain.”

This Court’s Ruling

As modified, we affirm the judgment of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

July 7, 2023

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

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.