IN THE TENTH COURT OF APPEALS
No. 10-13-00408-CR
KIMBERLY DAWN JENKINS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 249th District Court Johnson County, Texas Trial Court No. F46989
MEMORANDUM OPINION
In one issue, appellant, Kimberly Dawn Jenkins, challenges the punishment
assessed as a result of the revocation of her community supervision. We affirm.
I. BACKGROUND
In December 2012, appellant was charged by indictment with unlawful
possession of a controlled substance, methamphetamine, in an amount less than one
gram, a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010).
Pursuant to a plea bargain with the State, appellant pleaded guilty to the charged offense. The trial court deferred a finding of guilt and placed appellant on deferred-
adjudication community supervision for five years.
Approximately three months after the trial court placed appellant on community
supervision, the State filed a motion to adjudicate guilt, alleging that appellant had
violated the terms and conditions of her community supervision by failing to abstain
from the illegal use of controlled substances, failing to report to her supervision officer,
failing to submit to urinalysis tests, and failing to complete community service. In
particular, the State alleged that appellant attempted to falsify a urinalysis test on or
about July 17, 2013.
On October 8, 2013, the trial court conducted a hearing on the State’s motion to
adjudicate guilt. At the beginning of the hearing, appellant pleaded “true” to the
allegations made in the State’s motion to adjudicate guilt. After admonishing appellant,
and accepting her plea, the trial court found appellant guilty of the underlying offense
and proceeded to punishment.
During the punishment portion of the hearing, appellant testified that she
smoked marihuana and used methamphetamine upon her release from the Tarrant
County jail. She also noted that she learned how to “fake a UA” while incarcerated.
Appellant acknowledged trying to falsify a urinalysis test by using urine that was
concealed in a pill bottle in her vagina. The State’s witness, Amanda Hendrick, testified
that the State recommended the SAFPF program for appellant. However, appellant
stated that she did not need drug rehabilitation and that the SAFPF program “wasn’t
Jenkins v. State Page 2 going to work for [her].” Moreover, appellant agreed that she would just sit there and
not participate in the SAFPF program, even if it was ordered by the trial court.
Later, appellant testified that she has changed her life by enrolling in school and
obtaining a job with a “family business.” Appellant did not produce evidence
supporting her contention that she had a job. Additionally, appellant admitted on
cross-examination that she had only attended one week of classes at Everett College in
Fort Worth, Texas, though she had allegedly paid about $2,500 for books. Appellant
also testified that she has three children and that the children live with their father.
When asked about her plans for her children, appellant emphasized the following:
Because I worked so hard to get where I am now, and I did it in a short period of time. So I know that I’m strong enough, and when I’m back at home and I have my family support now, I’m going to—I’m going to be busy working, doing community service, going to school, bettering myself for me and my children; that to put it all on hold to go through this SAFPF, it’s going to hurt me, I feel, because I’m there. I’ve already—I’ve got the ball rolling already.
At the conclusion of the hearing, the trial court assessed punishment at two
years’ incarceration in the State-Jail Division of the Texas Department of Criminal
Justice.1 The trial court certified appellant’s right of appeal, and this appeal followed.
1 As noted above, appellant was charged with a state-jail felony and received a two-year sentence. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). Under section 12.35(a) of the Texas Penal Code, the punishment range for a state-jail felony is “confinement in a state jail for any term of not more than two years or less than 180 days.” TEX. PENAL CODE ANN. § 12.35(a) (West 2011). Accordingly, appellant’s sentence was within the statutorily-prescribed punishment range. See id.; see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (noting that the trial court’s discretion to impose any punishment within the prescribed range is essentially “unfettered”); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.) (“Generally, punishment assessed within the statutory limits is not excessive, cruel, or unusual punishment.”).
Jenkins v. State Page 3 II. ANALYSIS
In her sole issue on appeal, appellant contends that the trial court violated her
due-process rights under the United States and Texas Constitutions when it refused to
consider the entire range of punishment or mitigating evidence when determining
punishment.
The Due Process Clause of the Fourteenth Amendment provides that no State
may “deprive any person of life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV. “The touchstone of due process is fundamental fairness.” Euler v.
State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007) (citing Gagnon v. Scarpelli, 411 U.S. 778,
790, 93 S. Ct. 1756, 1763, 36 L. Ed. 2d 656 (1973); Webb v. State, 161 Tex. Crim. 442, 278
S.W.2d 158, 160 (1955)).
A trial court’s refusal to consider the entire range of punishment violates due
process. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App. 2005) (per curiam). The
trial court also denies due process when it refuses to consider the evidence and imposes
a predetermined sentence. Cole v. State, 931 S.W.2d 578, 580 (Tex. App.—Texarkana
1995, pet. ref’d). “Texas trial courts have wide discretion in determining the proper
punishment in a revocation hearing, but due process guarantees a defendant the right
to a hearing before a neutral and detached hearing body.” Ex parte Brown, 158 S.W.3d at
454 (internal citations & quotations omitted). “The decision of what particular
punishment to assess within the statutorily prescribed range for a given offense is a
normative, discretionary function.” Barrow v. State, 207 S.W.3d 377, 379-80 (Tex. Crim.
App. 2006). “Subject only to a very limited, exceedingly rare, and somewhat
Jenkins v. State Page 4 amorphous Eighth Amendment gross-disproportionality review, a punishment that
falls within the legislatively prescribed range, and that is based upon the jury’s (or trial
court’s in a bench trial) informed normative judgment, is unassailable on appeal.” Id. at
381 (internal citations & quotations omitted).
Generally, to preserve error for appellate review, a complaining party must make
a timely and specific objection in the trial court and obtain a ruling. See TEX. R. APP. P.
33.1(a)(1); Wilson v.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE TENTH COURT OF APPEALS
No. 10-13-00408-CR
KIMBERLY DAWN JENKINS, Appellant v.
THE STATE OF TEXAS, Appellee
From the 249th District Court Johnson County, Texas Trial Court No. F46989
MEMORANDUM OPINION
In one issue, appellant, Kimberly Dawn Jenkins, challenges the punishment
assessed as a result of the revocation of her community supervision. We affirm.
I. BACKGROUND
In December 2012, appellant was charged by indictment with unlawful
possession of a controlled substance, methamphetamine, in an amount less than one
gram, a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010).
Pursuant to a plea bargain with the State, appellant pleaded guilty to the charged offense. The trial court deferred a finding of guilt and placed appellant on deferred-
adjudication community supervision for five years.
Approximately three months after the trial court placed appellant on community
supervision, the State filed a motion to adjudicate guilt, alleging that appellant had
violated the terms and conditions of her community supervision by failing to abstain
from the illegal use of controlled substances, failing to report to her supervision officer,
failing to submit to urinalysis tests, and failing to complete community service. In
particular, the State alleged that appellant attempted to falsify a urinalysis test on or
about July 17, 2013.
On October 8, 2013, the trial court conducted a hearing on the State’s motion to
adjudicate guilt. At the beginning of the hearing, appellant pleaded “true” to the
allegations made in the State’s motion to adjudicate guilt. After admonishing appellant,
and accepting her plea, the trial court found appellant guilty of the underlying offense
and proceeded to punishment.
During the punishment portion of the hearing, appellant testified that she
smoked marihuana and used methamphetamine upon her release from the Tarrant
County jail. She also noted that she learned how to “fake a UA” while incarcerated.
Appellant acknowledged trying to falsify a urinalysis test by using urine that was
concealed in a pill bottle in her vagina. The State’s witness, Amanda Hendrick, testified
that the State recommended the SAFPF program for appellant. However, appellant
stated that she did not need drug rehabilitation and that the SAFPF program “wasn’t
Jenkins v. State Page 2 going to work for [her].” Moreover, appellant agreed that she would just sit there and
not participate in the SAFPF program, even if it was ordered by the trial court.
Later, appellant testified that she has changed her life by enrolling in school and
obtaining a job with a “family business.” Appellant did not produce evidence
supporting her contention that she had a job. Additionally, appellant admitted on
cross-examination that she had only attended one week of classes at Everett College in
Fort Worth, Texas, though she had allegedly paid about $2,500 for books. Appellant
also testified that she has three children and that the children live with their father.
When asked about her plans for her children, appellant emphasized the following:
Because I worked so hard to get where I am now, and I did it in a short period of time. So I know that I’m strong enough, and when I’m back at home and I have my family support now, I’m going to—I’m going to be busy working, doing community service, going to school, bettering myself for me and my children; that to put it all on hold to go through this SAFPF, it’s going to hurt me, I feel, because I’m there. I’ve already—I’ve got the ball rolling already.
At the conclusion of the hearing, the trial court assessed punishment at two
years’ incarceration in the State-Jail Division of the Texas Department of Criminal
Justice.1 The trial court certified appellant’s right of appeal, and this appeal followed.
1 As noted above, appellant was charged with a state-jail felony and received a two-year sentence. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). Under section 12.35(a) of the Texas Penal Code, the punishment range for a state-jail felony is “confinement in a state jail for any term of not more than two years or less than 180 days.” TEX. PENAL CODE ANN. § 12.35(a) (West 2011). Accordingly, appellant’s sentence was within the statutorily-prescribed punishment range. See id.; see also Ex parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006) (noting that the trial court’s discretion to impose any punishment within the prescribed range is essentially “unfettered”); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.) (“Generally, punishment assessed within the statutory limits is not excessive, cruel, or unusual punishment.”).
Jenkins v. State Page 3 II. ANALYSIS
In her sole issue on appeal, appellant contends that the trial court violated her
due-process rights under the United States and Texas Constitutions when it refused to
consider the entire range of punishment or mitigating evidence when determining
punishment.
The Due Process Clause of the Fourteenth Amendment provides that no State
may “deprive any person of life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV. “The touchstone of due process is fundamental fairness.” Euler v.
State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007) (citing Gagnon v. Scarpelli, 411 U.S. 778,
790, 93 S. Ct. 1756, 1763, 36 L. Ed. 2d 656 (1973); Webb v. State, 161 Tex. Crim. 442, 278
S.W.2d 158, 160 (1955)).
A trial court’s refusal to consider the entire range of punishment violates due
process. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App. 2005) (per curiam). The
trial court also denies due process when it refuses to consider the evidence and imposes
a predetermined sentence. Cole v. State, 931 S.W.2d 578, 580 (Tex. App.—Texarkana
1995, pet. ref’d). “Texas trial courts have wide discretion in determining the proper
punishment in a revocation hearing, but due process guarantees a defendant the right
to a hearing before a neutral and detached hearing body.” Ex parte Brown, 158 S.W.3d at
454 (internal citations & quotations omitted). “The decision of what particular
punishment to assess within the statutorily prescribed range for a given offense is a
normative, discretionary function.” Barrow v. State, 207 S.W.3d 377, 379-80 (Tex. Crim.
App. 2006). “Subject only to a very limited, exceedingly rare, and somewhat
Jenkins v. State Page 4 amorphous Eighth Amendment gross-disproportionality review, a punishment that
falls within the legislatively prescribed range, and that is based upon the jury’s (or trial
court’s in a bench trial) informed normative judgment, is unassailable on appeal.” Id. at
381 (internal citations & quotations omitted).
Generally, to preserve error for appellate review, a complaining party must make
a timely and specific objection in the trial court and obtain a ruling. See TEX. R. APP. P.
33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Preservation is
required for due-process complaints. See Anderson v. State, 301 S.W.3d 276, 280 (Tex.
Crim. App. 2009) (“Indeed, our prior decisions make clear that numerous constitutional
rights, including those that implicate a defendant’s due process rights, may be forfeited
for purposes of appellate review unless properly preserved.”); see also Harris v. State, 160
S.W.3d 621, 625 (Tex. App.—Waco 2005, pet. dism’d) (stating that a due-process
complaint that the trial judge had predetermined the sentence must be preserved for
appellate review by a timely objection). The preservation rule “ensures that trial courts
are provided an opportunity to correct their own mistakes at the most convenient and
appropriate time—when the mistakes are alleged to have been made.” Hull v. State, 67
S.W.3d 215, 217 (Tex. Crim. App. 2002).
Here, appellant admits and the record reflects that she did not object to the
assessed punishment in the trial court. In fact, appellant first raises her due-process
complaint on appeal. Because appellant did not object to the assessed punishment in
the trial court, we conclude that appellant has failed to preserve her due-process
complaint for appellate review. See TEX. R. APP. P. 33.1(a)(1); Wilson, 71 S.W.3d at 349;
Jenkins v. State Page 5 see also Anderson, 301 S.W.3d at 280; Harris, 160 S.W.3d at 625. Accordingly, we overrule
appellant’s sole issue on appeal.
III. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 5, 2014 Do not publish [CR25]
Jenkins v. State Page 6