Opinion
No. 05-09-01045-CR
Opinion issued June 24, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-09-287.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
MEMORANDUM OPINION
Byron Trevoice Turner pleaded guilty to retaliation, acknowledging that he threatened to kill the mother of his child because he was not being permitted to see the child. The trial court assessed his punishment at seven years' confinement in the Texas Department of Criminal Justice. In a single appellate issue, Turner contends the trial court erred by failing to require his presentence report to include a psychological evaluation, because he is a person with a mental impairment. The factual and procedural history are known to the parties, so we do not recite them in detail. We affirm the judgment of the trial court. During the trial on punishment, Carol Scobee Niles-Jones, a probation officer for Rockwall County, testified concerning Turner's presentence investigation ("PSI"). She reported that Turner, who was twenty-four at the time of trial, had been diagnosed as a juvenile with bipolar disorder. He took psychotropic medication for the disorder until he was eighteen, but had remained untreated for the disorder since that time. Turner testified on his own behalf, explaining that he lived within the Child Protective Services system until he was eighteen; after he was released from the system he did not receive any more medication. Turner argues this testimony was sufficient to alert the trial court to his mental impairment and to require a psychological evaluation before sentencing. The code of criminal procedure requires that:
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.Tex. Code Crim. Proc. Ann. art. 42.12, § 9(i) (Vernon 2006). No such psychological evaluation appears in the record, either in documentary form or within the testimony of Niles-Jones. However, Turner did not object to the absence of a psychological evaluation in the court below. Turner argues his right to the evaluation cannot be waived, relying on Garrett v. State, 818 S.W.2d 227 (Tex. App.-San Antonio 1991, no pet.). However, the weight of more recent authority is to the contrary. This Court has held that the right to have a trial court order preparation of a PSI generally is "forfeitable by inaction." Wright v. State, 873 S.W.2d 77, 83 (Tex. App.-Dallas 1994, pet. ref'd). Thus, if a defendant fails to object to the lack of a PSI, he cannot complain of its non-existence on appeal. Id. Given that the psychological evaluation called for in section 9(i) is merely part of a PSI, courts have concluded a defendant can waive the right to complain about that part of the PSI being omitted. "The right to a part of the whole should not be given more protection than the right to the whole." Nguyen v. State, 222 S.W.3d 537, 541 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd) (holding failure to object at trial waives error in not ordering psychological evaluation). We conclude that by failing to object to the absence of a psychological evaluation at trial, Turner has failed to preserve his complaint for appellate review. See id. We overrule Turner's issue and affirm the trial court's judgment.