Kimberly Renee Albert v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 27, 2025
• Docket: 07-24-00410-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00410-CR

KIMBERLY RENEE ALBERT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Childress County, Texas Trial Court No. 7025, Honorable Dale A. Rabe, Jr., Presiding

August 27, 2025 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Kimberly Renee Albert, was placed on deferred adjudication community

supervision for a period of seven years for the offense of possession of a controlled

substance with intent to deliver.1 The State filed a motion to proceed to adjudication.

After a hearing, the trial court adjudicated Appellant guilty and sentenced her to fifty years’

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d). incarceration and a $500 fine. Appellant appeals this sentence. We affirm the trial court’s

judgment.

BACKGROUND

On June 8, 2023, Appellant pleaded guilty to the charged offense as part of a plea

bargain for which the State would recommend that adjudication be deferred and Appellant

placed on community supervision for seven years. The trial court accepted the State’s

recommendation. On June 24, 2024, the State filed a motion to proceed to adjudication

alleging that Appellant had committed multiple violations of the terms of her community

supervision. The trial court conducted a hearing on the State’s motion. Appellant pleaded

not true to the alleged violations. At the hearing, evidence was presented establishing

that Appellant admitted to using methamphetamine on two occasions and marijuana

once; failed to submit to drug testing; associated with a known felon; and repeatedly failed

to report, pay monthly fees, or complete statements of inability to pay monthly fees. At

the conclusion of the hearing, the trial court granted the State’s motion, adjudicated

Appellant guilty, and sentenced her to fifty years’ incarceration and a $500 fine.

By her appeal, Appellant contends that the sentence imposed by the trial court

constitutes cruel and unusual punishment in violation of the Eighth Amendment.

ANALYSIS

While not raised by the State, preservation of error is a systemic requirement that

we must review sua sponte. Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App.

2009). Like many other rights, the constitutional right to be free from cruel and unusual

punishment may be waived. Recio v. State, No. 14-06-00312-CR, 2007 Tex. App. LEXIS 2 3905, at *6 (Tex. App.—Houston [14th Dist.] May 22, 2007, no pet.) (mem. op., not

designated for publication). Ordinarily, to preserve an issue for appellate review, an

appellant must have first raised the issue in the trial court. TEX. R. APP. P. 33.1; Sample

v. State, 405 S.W.3d 295, 303 (Tex. App.—Fort Worth 2013, pet. ref’d). A sentencing

issue may be preserved by objecting at the punishment hearing or when sentence is

pronounced. See Sample, 405 S.W.3d at 303 (citing Russell v. State, 341 S.W.3d 526,

527–28 (Tex. App.—Fort Worth 2011, no pet.), for proposition that appellant failed to

preserve Eighth Amendment complaint when he failed to object at sentencing). In some

instances, a sentencing issue may be preserved by raising it in a motion for new trial. Id.

In the present case, Appellant did not raise the issue of her sentence being grossly

disproportionate during the hearing on the State’s motion to proceed to adjudication or

when sentence was pronounced. She did, however, file a motion for new trial in which

she alleged that “[t]he sentence imposed in this cause was grossly disproportionate to the

offense, and, thus, violated the Eighth Amendment’s prohibition against cruel and unusual

punishments.” To preserve an issue by motion for new trial, a defendant must present

the motion to the trial court. Richardson v. State, 328 S.W.3d 61, 72 (Tex. App.—Fort

Worth 2010, pet. ref’d) (per curiam) (citing TEX. R. APP. P. 21.6); see also Rucker v. State,

No. 07-20-00128-CR, 2021 Tex. App. LEXIS 7024, at *10 (Tex. App.—Amarillo Aug. 25,

2021, pet. ref’d) (mem. op., not designated for publication) (claim of disproportionate

sentence must be presented to trial court to be preserved). The defendant must ensure

that the trial court has actual notice of the motion for new trial; merely filing the motion is

not sufficient. Id. Actual notice can be shown by things such as the judge’s signature on

the proposed order or the trial court setting a hearing for the motion on the docket. Id.

3 There is no evidence of presentment of the motion shown in this appellate record: no

entry appears on the trial court’s docket sheet regarding the motion for new trial, no

signature of the judge appears on the motion, no hearing was set or held, and no

indication shows that the trial court had actual knowledge that the motion for new trial was

filed. Id. Thus, we conclude that Appellant has failed to preserve her claim regarding the

alleged disproportionate sentence for our review.

However, even if the record showed that Appellant presented the motion, we do

not find that her fifty-year sentence is grossly disproportionate. Generally, when a

sentence is within the relevant statutory range, that punishment is not subject to challenge

for excessiveness. Sample, 405 S.W.3d at 304. Appellant contends that her fifty-year

sentence is cruel and unusual for the offense of possession of a controlled substance

with the intent to deliver. We note that the fifty-year sentence is within the statutory range

of five to ninety-nine years or life.2 The Texas Court of Criminal Appeals “has traditionally

held that 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). Appellant

specifically contends that consideration should have been given to the ownership she

took over her shortcomings and her desire to receive help. Appellant pleaded guilty in

June of 2023 as part of a plea bargain agreement by which she would be placed on

deferred adjudication community supervision for seven years rather than potentially being

sentenced to five to ninety-nine years or life imprisonment. The record reflects that

Appellant was released from ISF on or about November 8, 2023, and admitted to using

2 See TEX. PENAL CODE ANN. § 12.32.

4 marijuana on or about November 30, and methamphetamine on December 9 and 10. So,

within a month of her release from custody, Appellant admitted to using drugs on three

occasions. See Acosta v. State, Nos. 07-22-00149-CR, 07-22-00150-CR, 2023 Tex. App.

LEXIS 6482, at *6 (Tex. App.—Amarillo Aug. 23, 2023, pet. filed) (mem. op., not

designated for publication) (“The trial court can consider Appellant’s failure to comply with

the terms and conditions of his community supervision in assessing his sentence.”).

Further, the record reflects that far from seeking help for her drug abuse, Appellant was

not interested in inpatient treatment of any kind and refused to participate in a two-year

outpatient program because she did not think she needed that much treatment. Thus,

even if we assume that Appellant had preserved her disproportionate sentence claim, we

do not conclude that the record reflects that Appellant’s sentence is one of the

“exceedingly rare” or “extreme” cases where a sentence that falls within the statutory

range is grossly disproportionate. Simpson, 488 S.W.3d at 322–23.

CONCLUSION

For the foregoing reasons, we overrule Appellant’s sole issue and affirm the

judgment of the trial court.

Judy C. Parker Justice

Do not publish.