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Cain v. State

Court of Appeals of Texas, Fourteenth District

May 2, 2017

CLARENCE CAIN, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 179th District Court Harris County, Texas Trial Court Cause Nos. 1452528, 1453506, 1455294

          Panel consists of Justices Christopher, Jamison, and Donovan.

          OPINION

          Martha Hill Jamison Justice.

         Defendant Clarence Cain pleaded guilty to three offenses of aggravated robbery.[1] After the trial court ordered a presentence investigation report (PSI), it sentenced appellant to 25 years' imprisonment as to each offense, to run concurrently. The PSI included a letter from appellant's mother implying that appellant might suffer from mental illness and a statement from appellant that he was under the influence of and possibly addicted to drugs when he committed the offenses.

         On appeal, appellant complains that (1) the trial court erred in failing to order psychological and substance abuse evaluations of appellant to be included in the PSI;[2] (2) appellant's trial counsel provided ineffective assistance because he failed to object to the lack of such evaluations; and (3) the trial court erred in assessing duplicative court costs and fees against appellant as to each offense. We conclude that appellant waived his complaint that the trial court failed to order psychological and substance abuse evaluations and appellant failed to establish that he received ineffective assistance of counsel. We further conclude that the trial court erred in assessing duplicative court costs and fees and reform the trial court's judgments accordingly. As reformed, we affirm.

         I. Failure to Order Psychological and Substance Abuse Evaluations Waived

         Appellant complains that the trial court did not order psychological and substance abuse evaluations to be included in the PSI. A PSI must include a psychological evaluation when a "defendant convicted of a felony offense . . . appears to the [trial court] through its own observation or on suggestion of a party to have a mental impairment." Tex. Code Crim. Proc. art. 42.12 § 9(i). Similarly, a trial court is required to order a substance abuse evaluation when the trial court determines that "alcohol or drug abuse may have contributed to the commission of the offense." Id. § 9(h).

         Appellant acknowledges that his trial counsel did not object to the absence of these evaluations from the PSI. However, appellant argues the right to such evaluations is a systemic right that cannot be waived.

         The Court of Criminal Appeals has recognized three categories of rights belonging to litigants: systemic, waivable, and forfeitable. Sanchez v. State, 120 S.W.3d 359, 366 (Tex. Crim. App. 2003). Systemic rights include "a number of requirements and prohibitions which are essentially independent of the litigants' wishes. Implementation of these requirements is not optional and cannot, therefore, be waived or forfeited by the parties. The clearest cases of nonwaivable, nonforfeitable systemic requirements are laws affecting the jurisdiction of the courts." Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).

         We have consistently held that to preserve error, a party must specifically object to the omission of a psychological evaluation from a PSI. See, e.g., Welch v. State, 335 S.W.3d 376, 382 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd); Nguyen v. State, 222 S.W.3d 537, 542 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd). Likewise, a party must assert his right to a substance abuse evaluation to avoid waiver. Alberto v. State, 100 S.W.3d 528, 529 (Tex. App.-Texarkana 2003, no pet.); see also Handy v. State, 401 S.W.3d 809, 812 (Tex. App.-Houston [14th Dist.] 2013) (same), pet. granted, judgm't vacated on other grounds, 426 S.W.3d 104 (Tex. Crim. App. 2014); Nguyen, 222 S.W.3d at 542 (comparing right to psychological evaluation to right to substance abuse evaluation and noting that other appellate courts have held that the failure to object to the absence of a substance abuse evaluation waives the right to complain on appeal).

         In Nguyen, we noted that a defendant can waive the right to a PSI and a psychological evaluation is part of a PSI. 222 S.W.3d at 541. We thus held that "it logically follows that a defendant can waive the right to complain about a part of the PSI being left out. The right to a part of the whole should not be given more protection than the right to the whole." Id. (emphasis in original). In concluding that a defendant can waive his complaint that the PSI lacks a psychological evaluation, we analogized that evaluation to a substance abuse evaluation, noting that at least three intermediate appellate courts have held that a defendant who failed to object at trial waived the right to complain on appeal that a substance abuse evaluation was not included in the PSI.[3] Id. at 541-42 (citations omitted).

         We conclude that a defendant's right to these evaluations does not rise to the level of a systemic right. Cf. Reyes v. State, 361 S.W.3d 222, 230 (Tex. App.-Fort Worth 2012, pet. ref'd) (holding defendant's failure to object to trial court's consideration of PSI, among other things, did not preserve error on complaint "given the court of criminal appeals ha[d] never held the rights [the defendant] complain[ed] of [were] systematic and given the procedural safeguards in place."). We again confirm that a defendant can waive the right to complain about psychological and substance abuse evaluations being left out of his PSI. See Nguyen, 222 S.W.3d at 541-42. Therefore, because appellant did not raise this issue in the trial court by a timely and specific objection, it is waived. See Tex. R. App. P. 33.1(a). We overrule appellant's first issue.

         II. No Showing of Ineffective Assistance

         Appellant contends he received ineffective assistance of counsel because his trial counsel did not object to the lack of psychological and substance abuse evaluations in the PSI. To prevail on an ineffective-assistance claim, a defendant must prove that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To defeat this presumption, "[a]ny allegation of ...


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