In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

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 by Justice Bassel

SPENCER BATES, Appellant

V.

THE STATE OF TEXAS, Appellee
2

MEMORANDUM OPINION

I. Introduction

Appellant Spencer Bates appeals his conviction for the third-degree felony 

offense of assault–family violence by impeding the breath or circulation of his wife1

for which he was sentenced to five years’ imprisonment. In two points, Bates argues

that the trial court committed harmful error by failing to order a presentence 

investigation (PSI) report and that the trial court imposed a grossly disproportionate 

sentence in violation of the Eighth Amendment. Following case law from this court

and similar holdings from other courts, we rule against Bates on his first point and 

hold that he forfeited any error by failing to object to the trial court’s failure to order a 

PSI report or, alternatively, that any error in failing to order a PSI report was 

harmless. We also rule against Bates on his second point because he failed to include 

any evidence in his motion for new trial that would allow us to perform a proper 

disproportionate-sentence analysis. Accordingly, we affirm.

II. Brief Factual and Procedural Background

On February 16, 2020,2 after Bates’s wife threatened to leave him, he began 

choking her and slapped her in the face, leaving a scratch mark on her cheek. She 

1

The couple married on January 29, 2020. At 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 [was] in process.”

2

The record contains testimony about other instances in which Bates assaulted 

and threatened his wife and is replete with her testimony about her fear of being 
3

went outside and tried to escape over the fence, but Bates grabbed her, brought her 

back to the bedroom, got on top of her, and put his hands around her throat so that 

she could not breathe. Bates retrieved a handgun from a dresser drawer, pointed it at 

his wife’s head, and threatened to kill her. Bates’s wife’s mother came over to the 

house when she was unable to reach her daughter by phone, and her yelling caused 

Bates to let his wife go.

Based on this incident, the State charged Bates with first-degree aggravated 

assault with a deadly weapon causing bodily injury, second-degree aggravated assault 

with a deadly weapon by threat, and third-degree assault–family violence by impeding 

breath or circulation. Bates pleaded guilty to the third-degree felony, the State waived 

the other two counts, and the trial court deferred an adjudication of guilt and placed 

Bates on three years’ deferred-adjudication community supervision.

Less than a month later, the State filed a petition to proceed to adjudication,

alleging that Bates had committed five violations of his community-supervision 

conditions. At the hearing on the State’s petition, the State waived the first two 

allegations, and Bates pleaded “true” to allegation three and “not true” to allegations 

four and five. After hearing testimony, the trial court found allegations three, four, 

and five to be true; adjudicated Bates guilty; and sentenced him to five years’

imprisonment.

retaliated against based on providing such testimony. Because such testimony is not 

necessary to the disposition of the appeal, we omit it from the background section.
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III. Any Error from the Lack of a PSI Report Was Forfeited

or, Alternatively, Was Harmless

In his first point, Bates argues that the trial court committed harmful error by 

failing to order a PSI report. Bates contends that his right to a PSI report is a

systemic or waivable right and that he was not required to object to the trial court’s 

failure to order a PSI report in order to preserve error. Bates relies on a 2006 case 

from the San Antonio Court of Appeals to support his argument. See Laster v. State, 

202 S.W.3d 774, 777 (Tex. App.—San Antonio 2006, no pet.) (op. on reh’g). Bates, 

however, ignores a 2016 case from this court holding that the right to a PSI report can 

be forfeited by a failure to object. See Baires v. State, No. 02-16-00022-CR, 2016 WL 

5845927, at *5 (Tex. App.—Fort Worth Oct. 6, 2016, no pet.) (mem. op., not 

designated for publication). This authority, and similar holdings from other courts, is 

decisive of Bates’s first point.

As we explained in Baires, “A complaint concerning the trial court’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 request, objection, or 

motion that is ruled on by the trial court.” Id. Although we based our decision in 

Baires on a now-repealed PSI statute, the current PSI statute does not differ 

appreciably with regard to its mandatory nature or its forfeitability. Compare Tex. 

Code Crim. Proc. Ann. art. 42.12, § 9(a) (“[B]efore the imposition of sentence by a 

judge in a felony case, . . . the judge shall direct a supervision officer to report to the 
5

judge in writing on the circumstances of the offense with which the defendant 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 defendant or the offense requested by the judge.”) (repealed by Act of 

June 17, 2015, 84th Leg., R.S., ch. 770, § 3.01, 2015 Tex. Gen. Laws 2395), with Tex. 

Code Crim. Proc. Ann. art. 42A.252(a) (“[B]efore the imposition of the sentence by a 

judge, the judge shall direct a supervision officer to prepare a presentence report for 

the judge.”). Moreover, other courts have similarly held that the right to a PSI report 

is forfeited by the failure to object. See Jimenez v. State, 446 S.W.3d 544, 551 (Tex. 

App.—Houston [1st Dist.] 2014, no pet.); Smith v. State, 91 S.W.3d 407, 409 (Tex. 

App.—Texarkana 2002, no pet.) (“[T]he error in failing to order a PSI report is 

waived if the defendant fails to object to the failure or to bring the failure to the trial 

court’s attention.”); Wright v. State, 873 S.W.2d 77, 80 (Tex. App.—Dallas 1994, pet.

ref’d) (op. on reh’g) (expressly holding that the right to a PSI report is a forfeitable,

not a waivable-only, right). We therefore see no reason to depart from our holding in

Baires.

Bates’s argument that his right to a PSI report is not forfeitable and his reliance 

on Laster turns on the fact that the Legislature used the word “shall” in the PSI 

statute. Laster, however, dealt with the right to have a mistrial declared when a 

defendant is found incompetent after the beginning of the trial on the merits. 202 

S.W.3d at 777. The concern in that scenario is that a person who is incompetent 
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“cannot, by definition, intelligently waive his rights.” Id. at 778. This concern is not 

present in the case before us that focuses on the waiver of a right to a PSI report, 

which is not “a substantive right necessary to effectuate the proper functioning of our 

criminal justice system.” See Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App.

2014) (explaining when the nature of a right “is too significant to the judicial system 

to conclude that it is extinguished by mere inaction”). Thus, Laster is not applicable 

here.

At no time prior to the conclusion of the punishment hearing did Bates

specifically request a PSI report, object to proceeding with a punishment hearing in 

the absence of 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 

5845927, at *5. Because Bates did not specifically request a PSI report, object to 

proceeding with a punishment hearing in the absence of a PSI report, or file a motion 

seeking a PSI report at any time prior to the conclusion of his punishment hearing, he 

forfeited his right to complain of any error concerning the trial court’s failure to order 

a PSI report. See Tex. R. App. P. 33.1(a)(1)(A); Baires, 2016 WL 5845927, at *5;

Jimenez, 446 S.W.3d at 551; Smith, 91 S.W.3d at 409; Wright, 873 S.W.2d at 80.

Alternatively, we hold that any error stemming from the lack of a PSI report 

must be disregarded because it did not affect Bates’s substantial rights. See Tex. R. 

App. P. 44.2(b); Whitelaw v. State, 29 S.W.3d 129, 132 (Tex. Crim. App. 2000) (holding

that any error in failure to order the preparation of a PSI report is subject to review 
7

for harm under Rule 44.2(b)); Yarbrough v. State, 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 on a punishment decision, we consider the entire record, the nature of the 

evidence supporting the punishment decision, the character of the error, and how it 

might be considered in connection with other evidence in the case. See Yarbrough, 57 

S.W.3d at 619 (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).

Given the nature and character of the evidence supporting the trial court’s sentence of 

five years’ imprisonment (Bates’s choking and strangling his wife while pointing a gun 

at her head and threatening to kill her), and given the character of the error (the lack

of a PSI report in determining punishment for a third-degree felony for assault–family 

violence by impeding breath or circulation) and how a PSI report might be considered 

in connection with the other evidence, we hold that if Bates has not forfeited his 

claims of error in the trial court’s failure to order the preparation of a PSI report, 

nonetheless, such error did not affect his substantial rights. See Baires, 2016 WL 

5845927, at *5; Buchanan v. State, 68 S.W.3d 136, 140 (Tex. App.—Texarkana 2001, no 

pet.); Yarbrough, 57 S.W.3d at 620. Thus, we alternatively hold that even if Bates did 

not forfeit this complaint, we are required to disregard the error. See Tex. R. App. P. 

44.2(b). We overrule Bates’s first point.

IV. Bates Provided No Evidence for a Disproportionate-Sentence Analysis

In his second point, Bates argues that the trial court imposed a grossly 

disproportionate punishment in violation of the Eighth Amendment. Bates 
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recognizes that a sentence within the proper range of punishment is generally

permissible and concedes that the sentence imposed is within the statutorily 

authorized range for the offense in question. Bates, however, argues that “it is 

apparent that when the objectives of the system of prohibitions, penalties, and 

correctional measure[s] in the Penal Code are properly considered, the sentence 

imposed is excessive and disproportionate.” Assuming without deciding that Bates

preserved this issue for appeal in his motion for new trial, Bates has failed to carry his 

burden on appeal to demonstrate that his five-year sentence is grossly 

disproportionate to his offense. See Solem v. Helm, 463 U.S. 277, 290–91, 103 S. Ct. 

3001, 3010 (1983).

Bates failed to present any evidence or argument that would go toward 

satisfaction of the tests which must be met under Solem and Harmelin. See Harmelin v. 

Michigan, 501 U.S. 957, 1004–05, 111 S. Ct. 2680, 2707 (1991) (Kennedy, J., 

concurring in part); Solem, 463 U.S. at 290–91, 103 S. Ct. at 3011 (requiring, in 

proportionality analysis, evidence comparing defendant’s sentence with sentences 

received by other offenders in same jurisdiction and with sentences imposed for same 

crime in other jurisdictions). That is, Bates provided no evidence comparing 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 sentence here constitutes a grossly 
9

disproportionate sentence 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 offense of assault–family violence by impeding breath or circulation is grossly 

disproportionate and thus unconstitutional. See Griffin v. State, No. 02-19-00020-CR, 

2021 WL 126650, at *6 (Tex. App.—Fort Worth Jan. 14, 2021, no pet. h.) (mem. op., 

not designated for publication); Pantoja v. State, 496 S.W.3d 186, 193 n.4 (Tex. App.—

Fort Worth 2016, pet. ref’d) (declining to undergo proportionality analysis because 

appellant offered no evidence of sentences imposed in same jurisdiction and other 

jurisdictions); see also Hammer v. State, 461 S.W.3d 301, 303–04 (Tex. App.—Fort 

Worth 2015, no pet.) (overruling appellant’s claim that punishment was grossly 

disproportionate to offense because appellant offered no evidence in connection with 

motion for new trial of sentences imposed for same crime in same jurisdiction and 

other jurisdictions).

Accordingly, we overrule Bates’s second point.

3

Bates’s motion for new trial makes only a general statement that such evidence 

exists: “There are numerous defendants currently on probation or serving less time in 

prison for offenses that are more serious than this case[,] and few defendants possess 

the favorable background and characteristics that [Bates] possesses.”
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V. Conclusion

Having overruled Bates’s two points, we affirm the trial court’s judgment.

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: April 1, 2021