Affirmed and Memorandum Opinion filed May 2, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00160-CR
                             NO. 14-12-00161-CR

                ROWENA MANUELA KLINKER, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 400th District Court
                          Fort Bend County, Texas
           Trial Court Cause Nos. 09-DCR-051626, 09-DCR-052114

                      MEMORANDUM OPINION

      Appellant Rowena Manuela Klinker was indicted for two counts of
aggravated sexual assault of a child alleged to have occurred on July 1, 2007; she
pleaded guilty. The trial court ordered a pre-sentence investigation and heard
arguments on punishment. On January 19, 2012, the trial court sentenced the
appellant to 20 years’ confinement for each offense, with the sentences to run
concurrently. In two issues, the appellant challenges her punishment on appeal.
We affirm.

                                     ANALYSIS

I.    Community Supervision

      In her first issue, the appellant contends that the trial court erred by failing to
place her on community supervision when evidence in the record showed that such
placement was in the best interest of the complainant.

      We defer to the factfinder’s responsibility to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). Further, we review a sentence imposed by the trial court for abuse of
discretion.   Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984);
Buerger v. State, 60 S.W.3d 358, 363 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d). Generally, if the trial court assesses punishment within the statutorily
prescribed limits, the punishment will not be disturbed on appeal. Jackson, 680
S.W.2d at 814; Harris v. State, 204 S.W.3d 19, 29 (Tex. App.—Houston [14th
Dist.] 2006, pet. ref’d).

      A defendant charged with aggravated sexual assault of a child may be placed
on community supervision “only if the judge makes a finding in open court that
placing the defendant on community supervision is in the best interest of the
victim.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2012).
Absent such a finding, a trial court is bound to enter a sentence of imprisonment
for life or for a term of between 5 and 99 years. See Tex. Penal Code Ann. § 12.32
(Vernon 2011); Young v. State, No. 01-09-00790-CR, __ S.W.3d __, 2012 WL
668927, at *3 (Tex. App.—Houston [1st Dist.] March 1, 2012, pet. ref’d).

      The appellant’s argument relies on two paragraphs from a letter by the

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complainant written to the trial court:

      Every one [sic] has a storm in their life, some big some small. I will
      tell you one thing that might have been on [sic] of my biggest storms I
      will ever have in my life. Out of the biggest storm came the biggest
      blessing! By God’s grace and mercies I am living here today drug
      and razor free. I came out pretty strong with a good head on my
      shoulders. If it was not for all this mess I would not have started
      going to church, I would not have started dancing or playing
      volleyball! So through all of the mess you have created I realized I
      am stronger and better than ever.

      As far as punishment and what I would like to see happen. Is up to
      God I just ask one thing please, That she has to get some help from
      some one [sic] who is trained to help her. To see that this never
      happens again to another kid.

The appellant construes these paragraphs as evidence that it was in the best interest
of the complainant that the appellant be placed on community supervision. The
trial court reached a different conclusion: “This Court has heard not one shred of
evidence that would support such a finding. Everything I’ve heard has been about
[the appellant], and not about the victim.” A review of the record confirms the trial
court’s assessment that all of the evidence presented pertained solely to the
appellant.

      The trial court acted within its discretion in concluding that community
supervision is not warranted in this case. The complainant neither asked for
community supervision nor advocated a prison sentence. Her request that the
appellant “get some help” is likewise ambivalent as to the issue of a prison
sentence.    In the supervision plan at the conclusion of the PSI report, the
appellant’s community supervision officer made it clear that counseling programs
were available both inside and outside of prison:

      Should the Court sentence [the appellant] to the Texas Department of

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         Corrections Institutional Division, the following recommendations are
         respectfully recommended:

         1.     Attend, participate, and successfully complete sex offender
         counseling as offered by the Texas Department of Corrections
         Institutional Division.

                         *                   *                  *

         Should the Court decide to place [the appellant] on probation, the
         following conditions of probation are respectfully recommended:

         1.     Per the psychological evaluation by Dr. Gollaher, attend,
         participate, and successfully complete sex offender counseling at her
         own expense and abide by all special conditions of probation in the
         Sex Offender Addendum.

The appellant does not contend that she would lack access to effective counseling
programs in prison.

         In any event, it is the trial court’s responsibility to weigh the evidence, and
our role on appeal is restricted to guarding against the rare occurrence when a
factfinder does not act rationally. Isassi, 330 S.W.3d at 633. Here, the trial court
acted rationally in determining that the record contained no evidence that placing
the appellant on community supervision was in the victim’s best interest.
Accordingly, the trial court did not err by refusing to consider community
supervision, nor did it abuse its discretion in sentencing the appellant to 20 years’
confinement on each count. See Jackson, 680 S.W.2d at 814; Harris, 204 S.W.3d
at 29.

         We overrule the appellant’s first issue.

II.      Arbitrariness

         In her second issue, the appellant contends that the trial court’s assessment


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of 20 years’ confinement was arbitrary or unreasonable because it was not based
upon the evidence, but rather the “number of chances the court had given [the
appellant].”

      The appellant did not raise this issue below and has thus failed to preserve it
for appeal. Tex. R. App. P. 33.1(a).

      We overrule the appellant’s second issue.

                                 CONCLUSION

      Having overruled both of the appellant’s issues on appeal, we affirm the
judgment of the trial court.




                                       /s/       William J. Boyce
                                                 Justice



Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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