Jones, Leonard v. State ( 2005 )

Affirmed and Opinion filed February 1, 2005

Affirmed and Opinion filed February 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00235-CR

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LEONARD JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 944,199

O P I N I O N

Appellant, Leonard Jones, appeals from his conviction for murder.  After appellant pleaded guilty, the trial court ordered preparation of a presentence investigation (PSI) report.  After receiving the report, the court found appellant guilty and assessed punishment at 45 years’ incarceration.  In his sole issue on appeal, appellant contends that the trial court erred in failing to require that the PSI include a psychological evaluation.  We affirm.

Discussion

PSIs are governed by article 42.12 of the Texas Code of Criminal Procedure, which provides in relevant part as follows:

A presentence investigation conducted on any defendant convicted of a felony offense who appears to the judge through its own observation or on suggestion of a party to have a mental impairment shall include a psychological evaluation which determines, at a minimum, the defendant’s IQ and adaptive behavior score.  The results of the evaluation shall be included in the report to the judge as required by Subsection (a) of this section.

Tex. Code Crim. Proc. Ann. art. 42.12, § 9(i) (Vernon Supp. 2004).

Appellant does not contend, and the record does not reflect, that prior to the preparation of the PSI report any party suggested that appellant was mentally impaired or that the judge observed anything to indicate that appellant was mentally impaired.  Appellant argues instead that the court should have ordered a psychological evaluation because there was evidence in the PSI report itself that appellant was impaired.^[1]  However, nothing in article 42.12 requires the judge to examine the PSI report for evidence of mental impairment.  In other words, if no evidence or suggestion of impairment arises before the PSI is ordered, nothing in article 42.12 requires the judge to order a new PSI including a psychological evaluation based on evidence from the original PSI. The article clearly contemplates that a suggestion or observation of impairment be made prior to the PSI order. Accordingly, we find that the trial court did not err in failing to order a psychological evaluation.

The trial court’s judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed February 1, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do not publish — Tex. R. App. P. 47.2(b).

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^[1]  The evidence cited by appellant includes his habitual drug use, his attendance at special education classes, his failure to pass the ninth grade in two attempts, his failure to obtain a GED or graduate from a Job Corps program, and his experiencing of periodic blackouts. “Mental impairment” encompasses “mental weakness, deterioration, or damage.”  Garrett v. State, 818 S.W.2d 227, 229 (Tex. App.—San Antonio 1991, no pet.).