Opinion
No. 05-04-00103-CR
Opinion issued July 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F03-19584. Affirmed.
OPINION
Appellant Rodney Dwayne Presley entered a non-negotiated plea of guilty before the trial court to the offense of aggravated assault. He requested that the trial judge place him on deferred adjudication community service and send him to Cenikor, a drug treatment facility. The trial court found appellant guilty and assessed his punishment at twenty years' imprisonment. On appeal, appellant contends that the trial court committed reversible error by not sua sponte ordering both a presentence psychological and drug evaluation of appellant, pursuant to sections 9(h), (i) of article 42.12 of the Texas Code of Criminal Procedure. He further argues that his trial counsel was ineffective during the plea proceeding because he did not object to the lack of the presentence evaluations. Concluding appellant has shown no reversible error, we affirm. Appellant was originally indicted for aggravated assault on a public servant committed with a deadly weapon, a first degree felony. Tex. Pen. Code Ann. § 22.02 (a)(2), (b)(1) (Vernon 2003). On January 16, 2004, he pleaded guilty before the trial court to the lesser-included offense of aggravated assault with a deadly weapon, a second degree felony. Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon 2003). Appellant signed a stipulation of facts, including a judicial confession, that was admitted into evidence during the plea hearing. At that time the assault victim also testified to facts surrounding the aggravated assault. The assault occurred on a Dallas Area Rapid Transit (DART) bus. Appellant was a passenger and the victim was the bus driver. Appellant was running to catch the bus and the driver stopped and waited for him. When appellant got on, apparently he could not immediately find his ticket and felt the driver was being impatient with him. After a few words from the driver to another passenger, without warning, appellant struck the bus driver in his mouth, breaking two of his teeth. Appellant then ran off the bus. When the driver went to the door to clear his mouth of blood, appellant reached in, grabbed the bus driver and, using vulgar language, ordered him to get off the bus. When the driver resisted, appellant repeated his threats and pulled the driver toward the door. The driver fell, dislocating his shoulder, and snapping his left knee tendon. The driver could not tell if appellant was "on anything," but he did not smell alcohol on appellant. Appellant's father testified he had learned from a counselor appellant had been using drugs since he was thirteen or fourteen years old; however, he did not know appellant had started taking drugs even earlier. When appellant was younger he had lived with his mother, who had drug problems. Testifying in his own behalf, appellant acknowledged he understood the trial judge could give him up to 20 years in the penitentiary; however, he still wanted to plead guilty. He admitted he had a longstanding drug problem, that on his own he had contacted Cenikor about drug treatment, and he requested the trial judge to send him to Cenikor. Appellant testified he was under the influence of drugs at the time of this offense and had drunk alcohol and smoked embalming fluid that day. Appellant admitted he hit the driver first but said he did not realize he had caused the extent of the injuries to which the victim testified. Appellant said he had nothing against DART bus drivers and, in fact, his father drove a DART bus. Appellant felt the driver was too impatient with him about not finding his ticket. The trial judge also questioned appellant. Appellant said the driver said something to him and they had words back and forth before the driver told him to get off the bus. Appellant acknowledged he was not under the influence of drugs when the probation officer interviewed him days before the trial. Contending his testimony raised both the issue of mental impairment, as well as drug usage during the commission of the offense, appellant argues the trial court should have ordered both a psychological and a drug evaluation of appellant. A presentence investigation report (PSI) was admitted and a Cenikor representative testified appellant told him he had been using cocaine and PCP daily for the last two and a half to three years. But because the PSI contained no presentence evaluations of mental impairment or drug use, appellant contends the trial court committed reversible error. Appellant also complains his trial attorney was ineffective in not objecting to the lack of such presentence evaluations in the PSI. Article 42.12 § 9(i) provides in relevant part
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) (emphasis added). Article 42.12 § 9(h) provides in relevant part
On a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense, . . . the judge shall direct a supervision officer approved by the community supervision and corrections department or the judge or a person, program, or other agency approved by the Texas Commission on Alcohol and Drug Abuse, to conduct an evaluation to determine the appropriateness of, and a course of conduct necessary for, alcohol or drug rehabilitation for a defendant and to report that evaluation to the judge. The evaluation shall be made:
. . .
(2) after conviction and before sentencing, if the judge assesses punishment in the case . . .Tex. Code Crim. Proc. Ann. art. 42.12 § 9(h) (Vernon Supp. 2004) (emphasis added). Appellant contends the evidence that he was a longstanding drug abuser and had dropped out of school in the eighth grade raised before the trial court the issues of his mental incompetence and drug usage during the commission of the offense. Because the trial court did not order the required presentence evaluations to determine appellant's needs for rehabiliation, appellant argues, he suffered substantial harm in that his request for deferred adjudication was not more persuasive. See Tex.R.App.P. 44.2(b).
Actually, appellant's brief presents two "first issues": that the trial court erred in failing to order a psychological examination of appellant and in failing to order an alcohol/drug evaluation. Appellant's arguments are the same for both, so we address them together.
Unpreserved Error
Appellant's complaint about the lack of presentence evaluations was not presented to the trial court. Neither appellant nor his attorney requested a psychological or drug evaluation nor objected that the trial court did not order such evaluations. Nor did either suggest to the court appellant was mentally impaired. By not requesting such evaluations, or objecting to the lack thereof, appellant has failed to preserve error for review on appeal. Tex.R.App.P. 33.1(a); Wright v. State, 873 S.W.2d 77, 83 (Tex. App.-Dallas 1994, pet. ref'd).The Merits
Moreover, even if error had been preserved, we would conclude the evidence presented did not raise the issue of mental impairment; consequently, the trial court was not required to order a mental evaluation sua sponte. Nor does the record contain "a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense," a requisite for application of article 42.12 § 9(h). It is true appellant testified he was on drugs during the commission of the offense; however, it is also clear the trial judge did not find appellant to be a credible witness. And the trial court did consider the testimony of a Cenikor representative about his evaluation of appellant's drug problem and his belief appellant deserved a chance at Cenikor.Harmless Error
And even if the trial court should be deemed to have erred in not ordering the presentence evaluations, any error would be harmless because the error did not affect a substantial right. See Tex.R.App.P. 44.2(b). Appellant argues he was harmed because the trial judge would have been more likely to defer adjudication and send him to Cenikor if the evaluations had been done. The record belies appellant's contention. When interviewed by a Cenikor representative prior to trial, appellant gave one version of the facts. At trial, appellant testified to a different version. Although the Cenikor resident was not aware of the extent of the victim's injuries until the victim testified during the trial, and Cenikor has a general policy of not accepting defendants convicted of violent conduct, he recommended that Cenikor tentatively accept appellant into the program. During the victim's testimony at trial, he said as soon as appellant got on the bus he told the bus driver he could drive on. The driver told appellant he could not drive as long as appellant was standing in the door. The driver told him to take his time. Appellant found his pass and showed it to the driver who said "Thank you." Then as appellant walked down the aisle he told the driver to do his "fucking job." The driver asked him to watch his language and told appellant if he wanted to say something to he could thank him for stopping, which he did not have to do. Then the driver made a comment to one of the regular passengers on the front seat. As he started to close the door, appellant hit him. The victim denied he kicked appellant. In response to the trial judge's questions, the victim testified he could not tell whether appellant was on anything, but his assumption was that appellant was upset before he got on the bus; otherwise, he was just a "regular passenger." He also testified he did not think appellant should be back out on the street. Thereafter, when appellant took the stand the trial judge asked him if the victim was correct in his testimony. Appellant first testified the victim had testified correctly. However, he later said the victim had kicked him in the ribs. The record reflects the following exchange occurred between the trial court and appellant:THE COURT: This is the story you gave [the probation officer] on Monday. "Mr. Hopkins then called me back to the front of the bus and stated, 'You don't tell me how to run my bus. I'm driving the bus.' So I stated, 'Man, I'm a grown man and you need to find someone to play with,' and sat back down."
THE DEFENDANT: Yes, sir.
THE COURT: "Then he told me I couldn't ride the bus and I got up to hit Mr. Hopkins."
THE DEFENDANT: Yes, sir.
THE COURT: "Two times." Then you say, "He kicked me in the ribs and I flew off the bus."
THE DEFENDANT: Yes, sir.
THE COURT: "And he tried to kick me again and to stop him [sic] from being kicked in the face, I grabbed his foot and fell and I fell where we both stood and I got up and hit Hopkins in the mouth one more time. He started bleeding, so I stopped and left the scene."
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THE COURT: My question is, did [the victim] kick you in the ribs?
THE DEFENDANT: He kicked me in the ribs, sir.
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THE COURT: You didn't hit him. You sucker punched him. And you expect me to believe you catch this man completely offguard, knock his teeth out, and as bad a shape as he is, he must weigh 300 some odd pounds, he's in bad shape. You want me to believe that he was able to get up and kick you off the bus, physically kick you in the ribs?
THE DEFENDANT: (No answer.)
THE COURT: Hard story to believe, isn't it?Later, appellant's father agreed with the trial judge there was no way the driver, who he knew, could have gotten up and kicked appellant in the ribs. At sentencing, when defense counsel sought treatment for appellant at Cenikor, the following exchange occurred:
THE COURT: Mr. Presley, I look at every case absolutely independently and complete. Obviously by my questions, you know that I'm very predisposed to Cenikor. . . . The question is, do I give you a shot? Well, the first step that they will tell you with any addict is you have to admit your problems. And what is, I mean, you have managed to change my opinion completely before when I came in this morning, even to the point that your own father agrees that what you told the probation officer on Monday is a lie. . . . And when you won't even tell me the truth the week of coming into court to get sentenced, I can't believe you. I'm not going to give you a chance.The above excerpts make it clear the trial judge did not fail to defer appellant's adjudication of guilt and send him to a drug facility because of the lack of presentence evaluations, but rather because appellant lied to the court and the trial judge felt appellant was not a good candidate for the program. Consequently, even if error did occur, no harm is reflected in the record.