Opinion
No. 06-06-00197-CR
Submitted: April 16, 2007.
Decided: May 25, 2007. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court Gregg County, Texas, Trial Court No. 33045B.
Before MORRISS, C.J., CARTER and MOSELEY, JJ. Memorandum Opinion by Justice MOSELEY.
MEMORANDUM OPINION
Antonio Reyes Vasquez pleaded guilty to a subsequent offense of driving while intoxicated (DWI) and submitted the issue of punishment to the trial court. After having been assessed a punishment of eleven years' imprisonment, Vasquez now appeals. The record reveals that Vasquez signed and filed a stipulation wherein he admitted the offense of DWI as having occurred March 18, 2005, that he had been convicted of two previous misdemeanor DWI charges, and that he had been convicted of a prior subsequent offense of DWI, all of these prior offenses having occurred between 1992 and 1996. In Vasquez's sole point of error, he maintains that the trial court erred in having failed to obtain a presentence investigation (PSI) as mandated by Article 42.12, Section 9(h)(2) of the Texas Code of Criminal Procedure, which provides: (h) 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 . . . 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)(2) (Vernon 2006). DWI is a crime which, by its very nature, alcohol or drug abuse is apparent. Intoxication by alcohol, coupled with the driving of a motor vehicle, constitutes the offense. Clearly, then, this is the kind of offense which the Legislature would include among those for which a presentence evaluation would be mandated. The statute is mandatory. Smith v. State, 91 S.W.3d 407, 409 (Tex.App.-Texarkana 2002, no pet.); Caster v. State, 87 S.W.3d 751, 752 (Tex.App.-Texarkana 2002, no pet.). The statute requires the trial court to order the PSI after it determines that alcohol or drug abuse may have contributed to the commission of the offense. A timely objection or request is a prerequisite to presenting a matter for appellate review. Tex. R. App. P. 33.1(a); see Barnett v. State, 189 S.W.3d 272 (Tex.Crim.App. 2006). It is the burden of the parties to object to the trial court's failure to comply with a statutory requirement. See Buchanan v. State, 68 S.W.3d 136, 139 (Tex.App.-Texarkana 2001, no pet.). This Court has specifically held that a party must assert his right to a substance abuse evaluation or it is waived. See Alberto v. State, 100 S.W.3d 528, 529 (Tex.App.-Texarkana 2003, no pet.); Eddie v. State, 100 S.W.3d 437, 445 (Tex.App. — Texarkana 2003, pet. ref'd); Smith, 91 S.W.3d at 410; Caster, 87 S.W.3d at 752; see also Tex. R. App. P. 33.1(a). In the instant case, not only did Vasquez fail to object to the imposition of sentence without the court first having ordered and obtained a PSI, he affirmatively waived the PSI in writing and reaffirmed that waiver in open court. A defendant in a felony case may waive his right to the preparation of a PSI report, even when he is eligible for community supervision. Griffith v. State, 166 S.W.3d 261, 262 (Tex.Crim.App. 2005). In the absence of such an objection or request and, in fact, with an affirmative waiver of objection, we may not address the issue on appeal. The contention of error is overruled. We affirm the judgment of the trial court.