Ryan Hunter Brand v. State , 2013 Tex. App. LEXIS 11088 ( 2013 )

Opinion issued August 29, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00695-CR
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RYAN HUNTER BRAND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1291950
OPINION
Appellant Ryan Hunter Brand pleaded guilty to aggravated robbery without
an agreed recommendation as to punishment. See TEX. PENAL CODE ANN. § 29.03
(West 2011). After completion of a presentence investigation report, or PSI, the
trial court conducted a sentencing hearing and sentenced Brand to eight years in
prison. In his sole issue on appeal, Brand argues that the trial court erred by failing
to order, sua sponte, that a psychological evaluation be included in the PSI. See
TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(i) (West Supp. 2011). But because the
trial court had no independent duty to develop evidence of Brand’s mental health
in the PSI, we affirm.
The trial court has discretion to order the preparation of a PSI. See TEX.
CODE CRIM. PROC. ANN. art. 37.07 § 3(d) (“When the judge assesses the
punishment, he may order an investigative report as contemplated in Section 9 of
Article 42.12 of this code . . . .”); Johnson v. State, 357 S.W.3d 653, 654 n.1 (Tex.
Crim. App. 2012). The Code of Criminal Procedure specifies the contents of PSIs:
[B]efore the imposition of sentence by a judge in a felony case . . . the
judge shall direct a supervision officer to report to the judge in writing
on the circumstances of the offense with which the defendant is
charged, the amount of restitution necessary to adequately compensate
a victim, the criminal and social history of the defendant, and any
other information related to the defendant or the offense requested by
the judge.
TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(a). The PSI in this case detailed
Brand’s family and criminal history, including reference to his mental health status
and history. The PSI also included an evaluation of his probability of recidivism, a
report called a Level of Service Inventory-Revised, commonly known as an LSI-R.
See Bonnee v. State, No. 14-11-00603-CR, 2012 WL 3862029 at *1 n.1 (Tex.
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App.—Houston [14th Dist.] Sept. 6, 2012, no pet.) (mem. op.); see also Schulte v.
State, No. 01-10-00100-CR, 2012 WL 5381210 at *2 (Tex. App.—Houston [1st
Dist.] Nov. 1, 2012, no pet.) (mem. op., not designated for publication).
If the felony defendant “appears to the judge through its own observation or
on suggestion of a party to have a mental impairment,” then the PSI is required to
include a psychological evaluation, the reports of which shall be included in the
report. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(i). Under the doctrine of
regularity, we presume the trial court would have ordered a psychological
evaluation if it had observed that Brand was suffering from a mental impairment.
Welch v. State, 335 S.W.3d 376, 382 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d).
Brand alleges that the PSI was inadequate because it lacked a more complete
mental health evaluation. But in the trial court he did not challenge either the
general adequacy of the PSI or its specific failure to include a more complete
psychological evaluation. Brand acknowledges that a party must object to the
omission of a psychological evaluation to preserve error, but he nevertheless
argues that we should not consider the objection waived in this appeal because trial
counsel did not have access to important information such as the opinion in Welch
v. State, 335 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d), and
the contents of his LSI-R. He also suggests that not addressing the issue now
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would merely delay the examination of Brand’s psychological condition until later
proceedings, such as a postconviction claim of ineffective assistance of counsel.
Both arguments lack merit. Trial counsel had access to both the Welch
opinion, which issued five months before Brand’s first sentencing hearing, as well
as the contents of the LSI-R, as trial counsel acknowledged at the beginning of the
sentencing hearing. As for the argument about an inevitable later hearing into the
state of Brand’s psychology, he does not present an ineffective assistance claim on
direct appeal or present any record of evidence beyond mere speculation to suggest
that his trial counsel should have noticed a psychological issue that was not already
described in the PSI. Accordingly, we conclude that any error was waived on
appeal. See Welch, 335 S.W.3d at 382.
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
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