                                 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
