Appeal from the 179th District Court Harris County, Texas
Trial Court Cause Nos. 1452528, 1453506, 1455294
consists of Justices Christopher, Jamison, and Donovan.
Hill Jamison Justice.
Clarence Cain pleaded guilty to three offenses of aggravated
robbery. 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.
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
(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.
Failure to Order Psychological and Substance Abuse
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).
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.
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).
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
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. Id. at
541-42 (citations omitted).
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.
No Showing of Ineffective Assistance
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 ...