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–
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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.