IN THE

TENTH COURT OF APPEALS

No. 10-19-00149-CR

DEREK MCKAY DAVIDSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court No. CR15566

MEMORANDUM OPINION

In one issue, appellant, Derek McKay Davidson, argues that the trial court violated 

his substantial rights when it failed to have a pre-sentence investigation report (“PSI”) 

prepared prior to sentencing. We affirm.

I. BACKGROUND

Davidson was charged by indictment with one count of aggravated assault with a 

deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2). Davidson waived his right to a 
Davidson v. State Page 2

jury trial, entered an open plea of guilty, and requested to be put on community 

supervision. At the plea hearing, the judge found Davidson guilty of the charged offense,

found that a deadly weapon was used in the commission of the offense, and scheduled 

the sentencing hearing for five weeks later. At the sentencing hearing, Davidson 

requested that a PSI be completed prior to sentence being imposed. The trial judge took 

the request under advisement and proceeded.

Near the end of the sentencing hearing, Davidson again requested that a PSI be 

completed for the judge’s review, but the judge determined that the court had sufficient 

information to meaningfully exercise its sentencing discretion without a PSI. 

Consequently, the judge sentenced Davidson to eight years’ imprisonment with a $1,000 

fine. The trial court certified Davidson’s right of appeal, and this appeal followed.

II. ANALYSIS

Davidson contends that the trial court violated his substantial rights by denying 

his request to have a PSI prepared before sentencing. Assuming without deciding that 

the trial judge erred by failing to direct a supervision officer to prepare a PSI, see TEX.

CODE CRIM. PROC. ANN. art. 42A.252(c), we conclude that the error, if any, was harmless.

A. Applicable Law

The failure to order a PSI constitutes non-constitutional error subject to the 

harmless error provisions of Texas Rule of Appellate Procedure 44.2(b). See Whitelaw v. 

State, 29 S.W.3d 129, 132 (Tex. Crim. App. 2000); Scarborough v. State, 54 S.W.3d 419, 425-
Davidson v. State Page 3

26 (Tex. App.—Waco 2001, pet. ref’d); see also TEX. R. APP. P. 44.2(b) (“Any other error, 

defect, irregularity, or variance that does not affect substantial rights must be 

disregarded.”). An error affects substantial rights if it “had a substantial and injurious 

effect or influence in determining the [court’s] verdict.” Scarborough, 54 S.W.3d at 426 

(internal citations omitted).

B. Discussion

In assessing how a purported error impacted the trial court’s punishment decision, 

reviewing courts 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.” Yarbrough v. State, 57 S.W.3d 611, 619 (Tex. 

App.—Texarkana 2001, pet. ref’d).

Here, the omission of a PSI did not affect Davidson’s substantial rights for several 

reasons. First, prior to sentencing, Davidson received a full punishment hearing, which 

consisted of the testimony of nine witness, including Davidson himself. See Whitelaw, 29 

S.W.3d at 132 (noting that, “[t]he fact that the defendant had a full punishment hearing 

may well impact whether the error was harmless”). The testimony covered a wide range 

of information, including Davidson’s financial responsibility to his child, his own 

traumatic childhood, and his willingness to rehabilitate.

Additionally, the information ordinarily supplied by the PSI was not materially 

different from that which was adduced at the hearing. In other words, if the record 
Davidson v. State Page 4

testimony was insufficient to convince the trial judge to grant community service, the 

information included in the standard PSI was unlikely to have made a difference. In fact, 

at the conclusion of the sentencing hearing, the trial judge listed the information provided 

in each section of the Bosque County PSI report and concluded that the testimony 

sufficiently addressed each section.

In any event, Davidson argues that the PSI would have outlined a supervision plan 

and provided information about substance abuse treatment options and that neither of

these items were addressed at the sentencing hearing. However, as the State points out, 

the trial judge was likely familiar with the treatment options available, especially since, 

contrary to Davidson’s assertion, the options were mentioned at the hearing. 

Furthermore, as the State posits, the trial judge could have concluded that Davidson was 

not fit for community service based on testimony highlighting, among other things, his 

repeated drug use and his inability to make and keep appointments.

Finally, Davidson contributed to the problem of which he now complains by 

failing to attend his scheduled PSI appointment. According to the record, Davidson 

scheduled a PSI appointment for March 26, 2019, eight days after his pretrial hearing. 

Davidson did not show up to this appointment, nor did he reschedule until the day of his 

sentencing hearing on April 22, 2019. When the trial judge asked Davidson why he 

missed his initial appointment, he explained that he lost his job and moved to another 

town, where he was camping out and without a phone or transportation. Regardless, the 
Davidson v. State Page 5

record reflects that Davidson never asked for a continuance so that a PSI could be 

prepared, which is of particular importance since his new appointment was set for two 

days after the sentencing hearing.

Therefore, based on the foregoing, we cannot say that the purported error had a 

substantial and injurious effect or influence in determining Davidson’s sentence in this 

case. See Scarborough, 54 S.W.3d at 426; see also TEX. R. APP. P. 44.2(b). We overrule 

Davidson’s sole issue on appeal.

III. CONCLUSION

We affirm the judgment of the trial court.

MATT JOHNSON

Justice

Before Chief Justice Gray,

Justice Johnson, and

Justice Wright1

Affirmed

Opinion delivered and filed July 28, 2021

Do not publish

[CR25]

1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, 

sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 

75.002, 75.003.