Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00214-CR Erica Monique Jenkins, Appellant v. The State of Texas, Appellee On appeal from the 272nd District Court of Brazos County, Texas Judge John L. Brick, presiding Trial Court Cause No. 24-02424-CRF-272 JUSTICE HARRIS delivered the opinion of the Court. MEMORANDUM OPINION After pleading guilty to two counts of assault of a peace officer, the trial court deferred an adjudication of guilt and placed Erica Monique Jenkins on community supervision for five years. On an amended motion to proceed with adjudication filed by the State, the trial court adjudicated Jenkins guilty and sentenced her to 20 years in prison, on both counts, with the sentences ordered to run concurrently. We affirm the trial court’s judgments. BACKGROUND Prior to trial, Jenkins was evaluated to determine her competency to stand trial. Within the competency exam, Jenkins was diagnosed with a mild form of Intellectual Development Disorder (“IDD”) but also found to be competent to stand trial. After her convictions, Jenkins filed a motion for new trial alleging three reasons the trial court should grant a new trial: 1) newly discovered evidence of a potential diagnosis of moderate to severe IDD rather than mild IDD as found during the competency exam; 2) because of her intellectual disability, Jenkins’ conviction violated the due process/due course of law clauses of the United States and Texas Constitutions; and 3) because of her intellectual disability, Jenkins’ sentence of 20 years violated the cruel and unusual punishment clauses of the United States and Texas Constitutions. The trial court denied the motion by operation of law. See TEX. R. APP. P. 21.8(c). MOTION FOR NEW TRIAL Jenkins, relying on those same three reasons alleged in her motion for new trial, contends on appeal that the trial court abused its discretion in denying her motion for new trial. Standard of Review A trial court's ruling on a motion for new trial will only be reversed for an abuse of discretion. Najar v. State, 618 S.W.3d 366, 371 (Tex. Crim. App. Jenkins v. State Page 2 2021). The trial court is the exclusive judge of the credibility of the evidence, regardless of whether the evidence is controverted, and its ruling will be reversed only if it is arbitrary or unsupported by any reasonable view of the evidence. Id. at 372. We afford almost total deference to a trial court's fact findings and view the evidence in the light most favorable to the trial court's ruling. Id. at 371. In the absence of express findings, we presume all findings in favor of the prevailing party. Id. Newly-Discovered Evidence In her first issue, Jenkins contends that newly-discovered evidence of her potentially more severe form of intellectual disability required a new trial with a new competency exam. She asserts that her low I.Q. score found in her records from Windham State School District and an even lower I.Q. score on a KBIT-2 Revised test taken after trial support this issue. Article 40.001 of the Code of Criminal Procedure provides that “[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” TEX. CODE CRIM. PROC. art. 40.001. To be entitled to a new trial on the basis of newly-discovered or newly-available evidence, a defendant must satisfy a four-pronged test: (1) the newly-discovered evidence was unknown or unavailable to the defendant at the time of trial; (2) the defendant's failure to discover or obtain the new evidence was not due to the defendant's lack of due diligence; Jenkins v. State Page 3 (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017); Horne v. State, 554 S.W.3d 809, 815 (Tex. App.—Waco 2018, pet. ref'd). Jenkins fails to satisfy at least the first two prongs of the test. Nowhere in her motion for new trial or in her brief on appeal does she discuss or show that the records from the Windham State School District were unknown or unavailable to her at the time of the hearing on the State’s motion to adjudicate or that her failure to discover that record was not due to her lack of diligence. Further, although the KBIT-2 Revised test result was not created until after the hearing, there was nothing in her motion or in her brief discussing or showing that it could not have been administered prior to the hearing. Thus, because Jenkins failed to satisfy the first two prongs of the four-pronged test, we need not discuss the remaining two prongs, and the trial court did not abuse its discretion in failing to grant Jenkins’ motion for new trial based on newly- discovered evidence. Her first issue is overruled. Constitutional Violations In her second and third issues, Jenkins complains that because she is Jenkins v. State Page 4 intellectually disabled, adjudicating her guilty and sentencing her to prison for 20 years violates the due process and cruel and unusual punishment clauses of the United States and Texas Constitutions and requires a new trial. In support of both of these issues, Jenkins only cites to Washington v. State, 584 S.W.3d 929 (Tex. App.—Houston [1st Dist.] 2019, no pet.). She acknowledges, however, that her argument in her brief “goes farther than Washington outlined….” We agree. In Washington, three experts opined, and the State conceded, that the defendant was incompetent at the time of his trial due to his intellectual disability attributable to or exacerbated by multiple traumatic brain injuries. See id. at 930. In this case, Jenkins was found competent to stand trial. Jenkins cites no support for her assertion that being intellectually disabled, by itself, violates the due process/due course of law clauses or the cruel and unusual punishment clauses. See TEX. R. APP. P. 38.1(i); Neville v. State, 622 S.W.3d 99, 104 (Tex. App.—Waco 2020, no pet.). Accordingly, these issues are improperly briefed, present nothing for review, and are overruled. See id.; Solis v. State, 726 S.W.3d 394, 412 (Tex. Crim. App. 2025); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) (affirming that this Court has no obligation “to construct and compose” a party's “issues, facts, and arguments with appropriate citations to authorities and to the record” (internal quotes Jenkins v. State Page 5 omitted)). Issues two and three are overruled. Hearing on Motion As an alternate argument for each issue, Jenkins asserts that the trial court should have held a hearing on her motion for new trial. The right to a hearing on a motion for new trial is not absolute. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009); Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Although Jenkins timely filed an unsworn motion for new trial, presented it to the trial court, and requested a hearing, see TEX. R. APP. P. 21.4, 21.6, her motion for new trial was not verified. See Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). As a prerequisite to a hearing when the grounds in the motion are based on matters not already in the record, as in this case, the motion must be supported by an affidavit, either of the defendant or someone else, specifically setting out the factual basis for the claim. Id. Jenkins failed to attach an affidavit to the motion which specifically set out the factual basis for her claims. The only affidavits attached were those which verified that the KBIT- 2 Revised test results, the credentials of the administrator of that test, and the records received from the Windham State School District were true and correct copies. This is not sufficient. Because Jenkins failed to attach the required affidavit to her motion for Jenkins v. State Page 6 new trial, the trial court was not required to have a hearing. See Redmond v. State, 30 S.W.3d 692, 700 (Tex. App.—Beaumont 2000, pet. ref'd), Hamilton v. State, No. 10-23-00233-CR, 2024 Tex. App. LEXIS 6144, at *10 (Tex. App.— Waco Aug. 22, 2024, pet. ref'd) (mem. op., not designated for publication). Accordingly, Jenkins’ alternate arguments are also overruled. CONCLUSION Having overruled each of Jenkins’ issues on appeal, we affirm the trial court’s judgments. LEE HARRIS Justice OPINION DELIVERED and FILED: September 17, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CR25 Jenkins v. State Page 7