Opinion issued October 11, 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 14
- 00944
- CR

——————————— VICTOR LENARD HAMMON DS , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the 230th District Court

Harris County, Texas Trial Court Ca se No. 1402604

MEMORANDUM OPINION After Victor Hammond s pleaded guilty to intoxication assault, the trial court sentenced him to ten years’ confinement in the Texas Department of Criminal
Just ice Institutional Division. On appeal, H ammond s contends that the trial court2

erred by failing to include a drug and alcohol ev aluation in the presentencing investigation ( PSI ) report. We affirm. Background Hammo nd s pleaded guilty to intoxication assault and plead ed true to using a deadly weapo n during the assault. The trial court ordered a PSI report before conducting a punishment hearing

. At the hearing, the trial court inquired whether Hammond s had objections o r corrections to the PSI report. Hammond s responded by noting an ambiguity regar ding his prior criminal record and that he otherwise had no changes to the report :

THE COURT: Are there any objections to the report, additions or deletions that need to be made ?

*** * [DEFENSE COUNSEL ]: Other than that [noting that it wa s ambiguo us whether Hammond s ’ s DWI probat ion had been discharged], the defense would have no modifications to the PSI, Your Honor. The trial court considered the presentencing report at the punishment hearing . In the report, Hammond s related his family history and his own alcohol and drug abuse history and his earlier efforts at sobriety and in substance abuse treatment
programs . The report also contained evidence of the serious nature of the compla inant’s injuries and of Hammond s ’ s previous convictions, two f or driving while i ntoxicated and one for aggravated robbery

. At the conclusion of the3

hearing, t he trial court sentenced Hammond s to ten years ’ confinement in the Texas Department of Criminal Justice Institutional Divisio n. Discussion Hammond s argues for the first time on appeal that the trial court erred by failing to require a drug and alcohol evaluation in the PSI report , which is a statutorily required element of the report when alcohol or drug abuse may have contributed to the commission of the offens e. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.12 § 9(h) (West 2011) (providing that “[o] n a determination by the judge that alcohol or drug abuse may have contributed t o the commission of the offense

.

. . the judge shall direct a supervisio n officer

. . . to conduct an evaluation ”).
T he State does not dispute that s ection 9(h) applies to Hammond s ’ s offense

. It respond s , however, that Hammond s waived this complaint because he did not object to the lack of a substance abuse evaluation in the trial court. A ti mely objection, request, or motion is prerequisite to presenting a matter for appellate review

. See T EX
. R. A PP
. P. 33.1 (“As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timel y request, objection, or motion

. . . .”) Our court has held that preservation of error rules apply to matters to be included in a presentencing investigation report, including a substance evaluation.
Torres v. State , 391 S.W.3d 179, 182 ( Tex. App.

— Houston [1st Dist.] 2012, pet.4

ref’ d) (holding that Torres waived his right to a substance abuse evaluation when he failed to assert his right at trial ). Hammond s relies on Garrett v. State to reply that an objection to the lack of a substance ab use evaluation is not required to raise the issue on appeal. See 818 S.W.2d 227, 229 (Tex. App.

— San Antonio 1991 , no pet. ) (holding that defendant who appeared to have a mental impairment did not waive right to a psychological evaluation under art. 42.12 § 9(i) by failing to raise the issue at trial). In Garrett, however, the defendant had a history of mental illness and the trial court held a competency hearing; during the punishment phase, there was no PSI or mental health evaluation. See id

. The San Antonio Court of Appeals held that a

“ [c]onsidering the appellant’s history of mental illness . . . it appears the appellant may have had a mental impairment. Therefore, a presentence investigation was required

. ” See id. In this case , in contrast, the t rial court ordered the investigation, there was no challenge to Hammond s ’ s competency , and the trial court inquired whether counsel had any objections to the report

. Our court, as well as several of our sister courts, have declined to follow
Garrett in c ircumstances where competency is not an issue and a report was prepared

. See Morris v. State, 01

- 14

- 00511

- CR, 2016 WL 3438228, at *4 (Tex. App.

— Houston [1st Dist.] June 21, 2016, pet. ref’ d) ; see also Wright v. State , 873 S.W.2d 77, 83 (Tex. App.

— Dallas 1 994, pet. ref’ d) (holding that right to a PSI5

report provided for by article 42.12, section 9(a) is subject to procedural default and may be forfeited by inaction) ; Nguyen v. State , 222 S.W.3d 537, 542 (Tex. App.

— Hous ton [14th Dist.] 2007, pet. ref’ d) (hol ding that a party must object to the omission of a psychological evaluation from the PSI report to preserve error)) ; Eldridge v. State , 2

- 09

- 050

- CR, 2009 WL 3819579, at *1 (Tex. App.

— Fort Worth Nov. 12, 2009, no pet.) (mem. op., not designated for publicat ion) (holding that defendant who did not object to trial court’s failure to include a psychological
evaluation waiv ed his right to the evaluation) ; but see Elmore v. State , 07

- 04

- 0587

- CR, 2005 WL 2347401, at *3 (Tex. App.

— Am arillo Sept. 26, 2005, pet. ref’ d) (mem. op., not designated for publication) (holding that Garrett applies when a trial court orders a PSI). Following our court’s precedent in Morris, w e decline to follow Garrett under the facts presented in this case ; thu s, we hold that a defendant

mu st object to the lack of a substance abuse evaluation to raise it on appeal

. See
Morris , 2016 WL 3438228, at *4 ; Torres, 391 S.W.3d at 182. Hammond s did not object in the trial court that the PSI report failed to
include an alcohol and drug assessment. Accordingly, we hold that Hammond s failed to preserve his challenge to the adequacy of the PSI report

. See Torres, 391 S.W.3d at 182.6 Conclusion We affirm the judgment of the trial court.

Jane Bland Justice Panel consists of Justices Bl and, Massengale, and Lloyd. Do not publish. T EX
. R. A PP
. P. 47.2(b).