## In the Court of Appeals Second Appellate Dis trict of Texas at Fort W orth

___ ________________________ No. 02

- 20

- 00114

- CR

___________________________

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1631863D
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion b y J ustice Bassel 

### S PENCER 

### B ATES 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS 

### , Appellee2 MEMORANDUM OPINION
I. Intro duct ion Appellant Spencer Bates appe als his conviction for the third

- degree felony
of fense of assault

– family violence by impeding the breath or circulation of his wife 1
for which he was sentenced to five years ’ im prisonment. In two points, Bates argues
that the trial court committed harmful error by failing to order a present ence investigation (PSI) report and that the trial court imposed a grossly disprop ortionate sentence in violation of the Eighth Ame ndm ent. Fo llowing case law from this court

a nd similar holdings from other courts , we rule ag ainst Bates on hi s first point and
hold that he forfeited any error by failing to object to the trial court ’ s failure to order a
PSI rep o rt or, al ter natively, that any e rror in fail ing to order a PSI report was
ha rmless . We also rule against Bates on his second poin t because he failed to include any evidence in his motion for new trial that would allow us to perform a proper disproportion ate

- senten ce analysis . According ly, we affirm.
II. Brief Factual and Procedural B ackground
On February 16, 2020, 2 after Bates ’ s wife t hreatened to leave him , he be gan chokin g her and slapped her in the face, leaving a scrat ch mark on her cheek. S he

1 The couple married on Janua ry 29, 2020

. A t the time of the revocation hearing on May 29 , 2020, Bates ’s wife testified that she was still technically married to Bates but that “ the annulment [ wa s ] in process. ”

2 The record contains testimony about other instan ces in which Bates as s a u lted
a nd threatened his wife and is replete with her testim ony about her fear of being3 we nt outside and t ried to escape over the fence , but Bates grabbed her, brought her
back to the bed room, got on top of her, and put his hands around h er throat so that
she could not breathe

. B ates retrieved a han d gun from a dresser draw er , po inted it a t his wif e ’ s head, and threatened t o kil l h er. Bate s ’ s wife ’ s mother came over to the
house when she was unable to reach her daughter by phone, and her y elling caused
Bates to let h is wife go.
Based on this inci dent, the State c harged Bates with first

- de gree agg ravated
assault with a deadly we a pon causing bodily injury , sec ond

- degree aggravated assault with a deadly weapon by threa t , and third

- degree assault

– family violence by impeding
breath or circulation. Bat es pleaded guilty to the third

- degree felony, the State waived
the other two cou nts, and the trial court deferred an adjudication of guilt and placed
Bates on three years ’ deferred

- adjudication community supervision.
Less than a month later, t he State filed a petition to p roceed to adj udicati on , alleging t hat Bates h ad committed five viol ations of his community

- supe rvi sion
conditi ons . At the hearing on the State ’ s petition , the State waived t he first two allegations, and Bate s plea ded “ true ” to allegation three and “ not true ” to allegations
fo ur and five. After h earing testimony, t he tri al c ourt f ound allegations three, four , and five to b e true; adjudicated Bates guilty ; and sente nced him to five ye ars ’ imprisonme nt.

reta liated against based on providing such testimony. Because such testimony is not necessary to the disposition of the appeal, we omit it fr om the bac kgrou nd section.4 III. Any Error from the Lack of a PSI Report Was Fo rfeited or , Alternatively , Was Harmless
In his fir st point, Bates a r gu es that the trial court committed harm ful error by failing t o order a PSI report. Bates contends that his right to a PSI rep ort is a system ic or waivable ri ght and that he was not requi red to object to the tri al court ’ s failure to order a PSI report in order to preserve error

. Bates relies on a 2006 case fro m the San Anto nio Court of Appeals to support his a rgument
. See Laster v. State , 2 02 S.W.3d 774, 77 7 (Tex. App.

— San Antonio 2006, no pe t.) (op. on reh ’ g) . Bates, however, ignores a 2016 case from this court holding that the right to a PSI report can be f orfeited by a fail ure to object

. See Ba ires v. State , No. 02

- 16

- 0 0022

- CR, 2016 WL
58 45927, at * 5 (Tex. App.

— Fort Worth Oct. 6, 2016, no pet .) (mem. op., not designated for publication). This autho rity , and similar holdings from other courts, is
decisive of Bates ’ s first poin t. As we explained in Ba ires , “ A complaint concerning the trial c ourt ’ s error in failing to comply with th [e] statutory duty [ to order the preparation of a PSI report ]
must be preserved in the trial court by a timely and specific requ est, objection, or

mo tion that is ruled on by the t rial court. ” Id. Although we based our decision in
Baires on a now

- repea led PSI statute, the current PSI statute does not dif fer appreciably with regard to its mandator y nature or its forfeitability. Co mpare Tex.
Code Crim. Proc. A n n. art. 42.12, § 9(a) (“[B]efore the imposition of se ntence by a judge in a felony case, . . . the judge shall direct a supervision officer to report to the5 judge in wr iting o n the circu mstances of the offense with whi ch the d efendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defend ant or the offense requested by the judge.” ) (re pea led by Act of June 17, 2015, 84th Leg., R.S., ch. 77 0 , § 3.01, 2015 Tex. Gen. Laws 2395 ) , with Tex.
Code Crim. Proc. Ann. art. 42A.252(a) (“[B]efore the imposition of the sentenc e by a judge, the ju dge shall direct a superv ision officer to prepare a presentence report for
the judge.”)

. Moreover, other courts h a ve similarly held that the rig ht to a PSI report
is forfeit ed by the failure to object

. See Jimenez v. State , 446 S.W.3d 544, 55 1 (Tex. App.

— Houston [1s t Dist.] 2014, no pet

. ) ; Smith v. State , 91 S.W.3d 407, 409 (Tex.
A pp.

— Texarkana 2002, no p et .) ( “ [T] h e error in fai ling to order a P SI report is waived if the defendant fails to object to the failure or to bring the failure to the trial

court ’ s attention. ” ); Wri ght v. State , 873 S.W .2d 77, 80 (Tex. App.

— Dallas 1994, pet.
ref ’ d) (op. on reh ’ g) (expressly h o lding that th e rig ht to a PSI report is a for feitable ,

no t a waivable

- only , ri ght). We therefore see no reason to depart from ou r holding in
Baires

. Bates ’ s argument that his right to a PSI report is not forfeitable and his relianc e

o n Laster turns on th e fact that th e Legislature used the word “ s ha ll ” in the PSI

statute. Laster , howe ver, dealt with the right to have a mistrial declared when a defendant is fou nd incompetent after the beginning of the trial on the me rit s. 202
S.W.3d at 77 7 . The concer n in that scenario is that a per son who is incompetent6 “ cannot, by definition , intell igently waive his rights. ” Id. at 778. This concern is n o t present in the case before us that focuses on the waiver of a right to a PSI report , which is no t “ a substanti ve right necessary to effectuate the proper functioning of our criminal justi ce syste m. ” Se e Grado v. State , 445 S.W.3d 736 , 741 (Tex. Crim. A p p. 2014) ( explaining when t he nature of a right “ is too significant to the jud icial system

to conc l ude that it i s extinguished by mere inaction ” ). Thus, Laster is not applicable
here. At no time p rior to the conclusion of the punishment hearing did Ba tes specifically request a PSI report, object t o proceeding with a punishment h ear ing in
the absence o f a PSI report , or file a motion seeking a PSI report as required to preserve error for our review. See Tex. R. App. P. 33.1(a)(1)(A); Baires , 2016 WL
58 459 2 7, at * 5

. Because Ba t es did not specifically r equest a PSI report, object to proceeding with a pu n ishment heari ng in the absence of a PSI repor t, or file a motion
seeki ng a PSI report at any time prior to the conclusion of his punishment hearing, he
forf e ited his right to complain of any error concern ing the trial court ’ s failure t o order a PSI report

. See Tex. R. App. P. 33.1(a)(1)(A); Baires , 2016 WL 58 45927, at * 5 ; J

imenez , 446 S.W.3d at 551 ; Smith , 91 S.W.3d at 409; Wright , 873 S.W. 2d at 80.
Alternat i vely, we hold that any error stemming from the lack of a PSI report must be di sregarded because it did not affec t Ba tes ’ s substantial rights. S ee Tex. R. App. P. 44.2(b); Whitelaw v. State , 29 S.W.3d 129, 132 (Tex. Crim . App. 2000) (holding
that any erro r in failure to order the preparation of a PSI report is subject to review7 for harm under R ule 44.2 (b)) ; Yarb rough v. Sta te , 57 S.W.3d 611, 618

– 19 (Tex. App.

— Texarkana 2001, pet. ref ’ d)

. In assessing the impact an alleged Rule 44.2(b) error may have had o n a p unishmen t decision, we consider the enti re record, the nature of the
evid enc e supporting the punishment decision, th e character of the error, and how it might be considered in connection with other evidence in the case. See Yarb rough , 57
S.W.3d at 61 9 (ci ting Mo rales v. State , 32 S.W.3d 862, 8 67 (Tex. Crim. App. 2000)).
Give n t he nature and character of the evidence supporting the trial court ’ s sentence of
five years ’ imprisonment (Ba tes ’ s choking an d strangling his wife while p ointing a gun
at her h e ad and thre atening to kill her ), and given the character o f the error (the l ack

o f a PSI report in determining punishme nt for a third

- degree felony for assault

– family
violence by impeding breath or circulation ) and how a PSI report m ight be considered
in c onnection w ith the other evidence, we hold that if Ba t es h as not forfeited h is
cl aims of error in the trial court ’ s fai lure to order the preparation of a PSI report, nonetheless, such error did not affect his substant ial rights. See Baires , 2016 WL
58 459 2 7, at * 5 ; B uchanan v. State , 68 S.W.3d 136, 140 (Tex. App.

— Texarkana 2001, n o p et .); Yarb rough , 57 S.W.3d at 620. Thu s, we alternatively hold that even if Ba t es did not forfeit this complaint, we are required to disregard the error

. See Tex. R. App . P.
4 4.2(b). W e overrule Bates ’ s first point.
IV. Bates Provided No Evidence f or a Disprop ortionate

- Sentence Analysis
In his seco nd point, Bates ar gues that the trial court imposed a grossly
d isp roportionate punishment in violation of the Eighth Amendment. Bate s8 recognizes that a sentence wit hin the proper range of pun is hment is generally permissible and concedes that the sent ence imposed is within th e statutorily authorized range for the offense in question

. Bates, however, argues that “ it is apparent th a t w hen t he objectives of the sy stem of prohib iti on s , penalties, and correctional measure[s] in the Penal Co de are properly considered, the sentence impose d is exc essive and disprop ortionate. ” Assuming without deciding that Bates
preser ved this issue for a p peal in his motion for ne w t ri al , Bates has failed to carry his
burde n on appeal to demons trate that his five

- year se n tence is grossly disprop ortionate to his offen se . See Solem v. Helm , 463 U.S. 277, 290

– 91, 103 S. Ct. 3001, 3010 (1983).
Bates f ailed to prese nt an y evidence or argument that would go toward
satisfaction of the tests which must be met under Solem and Harmeli n . See Harmelin v.
Michi gan , 501 U.S. 95 7, 1004

– 05, 111 S. Ct. 2680, 2707 (1991) ( Kennedy, J., concurring in part) ; Solem , 463 U.S. a t 290

– 91, 1 03 S. Ct. at 30 1 1 ( requiring, in proportionality analysis, evidence comparing defendant ’ s se ntence with sentences received by other offenders in same ju risdiction and with sentences imposed for same crime in other jurisdictions )

. That is, Bates provi ded n o evidence compa ring his
sentence with sentences received by other offenders in the same jurisdiction for the
same crime and with sentences imposed for the same crime in other jurisdictions , so nothing in the record shows that Bates ’ s five

- year s enten ce he re constitutes a grossly9 disproportionate senten ce or cruel and unusual punishment

. 3 Accordingly , Bates has failed to carry his burden to show that his five

- year sentence for the third

- degree felony of fense of assault

– family violence by impedin g breat h o r circulation is g rossly disproportionate and thus unconstitutional. See Griffin v. State , No. 02

- 19

- 00020

- CR,
2021 WL 126650 , at *6 (Tex. App.

— Fort Wort h Jan. 14, 2021, no pet. h

. ) (mem. op. , not designated for publication ) ; Pantoja v. State , 4 96 S.W.3 d 1 86 , 193 n.4 (Tex. App.

— Fort Worth 2016, pet. ref ’ d

) ( declining to undergo proporti onality analysis because appellant offered no evidence of sentences impo sed in same jurisdiction and other jurisdictions ) ; see also Hammer v. State , 461 S.W.3d 301 , 3 03

– 04 (T ex . App.

— Fort
Wor th 2015, no pet.) (overruling app ellant ’ s claim that punishment w as grossly disproportionate to offense because appellant offered no evid ence in connection with motion for new trial of sentences imposed for same crime in same ju ris dicti on an d other jurisdi ctions). Accordingly, we overrule Bates ’ s second point.

3 Bates ’ s motion for new trial mak es only a general sta tement that such evidence exists: “ There are numerous defendants currently on prob a tion or serving less time in prison for offenses that are more serious than this case [,] and f ew defe ndants possess th e favorab le background and character istics that [Bates ] possesses
. ”10 V. Concl usion Having overruled Bates ’ s two points, we affirm the trial court ’ s j u dgment. /s/ Dabney Bassel Dabney Bassel Justice
Delivered: April 1, 2021