Timothy Wyman Packard v. State ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________ NO. 09-06-035 CR ______________________ TIMOTHY WYMAN PACKARD, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 05-05-04876 CR

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  MEMORANDUM OPINION Timothy Wyman Packard appeals the trial court's order sentencing him to thirty-five years confinement in the Texas Department of Criminal Justice, Institutional Division, for aggravated robbery. We affirm the trial court's judgment.

Packard was indicted for aggravated robbery and credit/debit card abuse, and the indictment alleged four enhancement paragraphs. He stipulated his guilt on the aggravated robbery charge and the four enhancement paragraphs, and the State abandoned the credit/debit card abuse charge as well as any effect of the enhancement paragraphs on the range of punishment. Packard waived his right to the preparation and presentation of a presentence investigation report. He entered his open plea to the trial court with no agreed recommendation as to his punishment. After hearing evidence on punishment, the trial court found him guilty of aggravated robbery and sentenced him to thirty-five years imprisonment. Packard argues the trial court erred in failing to order a pre-sentence investigation report in assessing his punishment pursuant to section 9, subsections (a), (h), and (i) of Article 42.12 of the Texas Code of Criminal Procedure. Section 9(a) provides the following:

Except as provided by Subsection (g) of his section, before 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 of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge. . . . [T]he report must contain a proposed client supervision plan describing programs and sanctions that the community supervision and corrections department would provide the defendant if the judge suspended the imposition of the sentence or granted deferred adjudication.

Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 2006). ⁽¹⁾

In Griffith v. State, the Texas Court of Criminal Appeals held that "there is nothing in Section 9 that prevents the defendant in a felony case from waiving the preparation of the [presentence investigation] report." Griffith v. State, 166 S.W.3d 261, 263 (Tex. Crim. App. 2005). Packard waived his right to the report in writing as part of his guilty plea.

Packard maintains his written waiver as to the presentence investigation report does not waive his right if subsection (h) or subsection (i) of section 9 applies. Subsection (h) mandates that a substance abuse evaluation be conducted when the trial court determines alcohol or drug abuse may have contributed to the commission of the crime. It is not apparent from the record that the trial court made this determination. Section (i) states the following:

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. 2006). This Court in Holloman v. State held that section (i) merely requires a PSI to include a psychological evaluation of a defendant if the trial court has previously ordered a PSI. Holloman v. State, 942 S.W.2d 773, 776 (Tex. App.--Beaumont 1997, no pet.).

Packard did not object to the trial court's failure to order a PSI during the punishment phase of the trial and did not file a motion for new trial. Under Griffith, Packard's claim is precluded because of his express waiver. Failure to raise an objection before the trial court also precludes appellate review of his claim. ⁽²⁾ See Alberto v. State, 100 S.W.3d 528, 529 (Tex. App.--Texarkana 2003, no pet.)("[A] party must assert his or her right to a substance abuse evaluation or it is waived."); Holloman, 942 S.W.2d at 776 ("[A]ny right to have a PSI prepared prior to sentencing in a felony case [under subsection (i)] is a right forfeitable by inaction.").

The trial court's judgment is affirmed.

AFFIRMED.

____________________________

DAVID GAULTNEY

Justice

Submitted on September 18, 2006

Opinion Delivered November 22, 2006

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, J.J.

1. No report is required in a felony case under section 9 if:

(1) punishment is to be assessed by a jury;

(2) the defendant is convicted of or enters a plea of guilty or nolo contendere to capital murder;

(3) the only available punishment is imprisonment; or

(4) the judge is informed that a plea bargain agreement exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow the agreement.

Tex. Code Crim. Proc. Ann. art. 42.12, § 9(g)(Vernon Supp. 2006). In the trial court's certification of Packard's right of appeal, the court characterized the case as "not a plea-bargain case" and granted Packard the right of appeal on punishment only. This certification is not challenged by either party.

2. Although Packard claims he requested the trial court to order a PSI at an earlier hearing and the trial court denied the request, the record does not include any request.