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.
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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). 
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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.
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“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 
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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, 
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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)).
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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
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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.
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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
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

JESSICA JEWEL CORIN BENTON, 

Appellant

No. 05-18-01024-CR 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.

Opinion delivered by Justice PartidaKipness. Justices Bridges and 

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.