Stephen Lars Morris v. State , 496 S.W.3d 833 ( 2016 )

Opinion issued June 21, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00511-CR
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STEPHEN LARS MORRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1384125
OPINION
Appellant Stephen Lars Morris was charged with the first-degree felony
offense of aggravated assault of a family member by causing serious bodily injury
with a deadly weapon. Without an agreement as to punishment, Morris pleaded
guilty to the reduced second-degree felony offense of aggravated assault of a
family member with a deadly weapon. Following preparation of a presentence
investigation (“PSI”) report and hearing, the trial court sentenced Morris to 20
years’ confinement in the Texas Department of Criminal Justice, Institutional
Division. On appeal, Morris (1) contends that the trial court violated article 42.12,
section 9(i) of the Texas Code of Criminal Procedure by failing to require that the
PSI report’s psychological evaluation include an adaptive behavior score and
(2) asks that we reform the trial court’s judgment to reflect that he has the right of
appeal. We modify the judgment as requested and affirm the trial court’s judgment
as modified.
Background
On April 13, 2013, Morris visited Edna Blair at her apartment. Blair
testified during the sentencing hearing that she had ended her relationship with
Morris the day before, and Morris was angry that she did not want to resume the
relationship. She testified that Morris had been packing his things in the bedroom
as she stood at her front door on the phone when Morris rushed out of the bedroom
and started stabbing her. Blair fell to the floor, and Morris continued to stab her.
Blair testified that she managed to get to her neighbor’s door, where she collapsed,
and Morris continued to attack her.
Blair’s neighbor, Jesse Smith, testified during the sentencing hearing that he
was home that evening with Lakisha Cox, and they both went to his front door
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after hearing a loud bang on the wall. Smith testified that, upon opening his front
door, he saw Blair on the ground at his doorstep and Morris standing over Blair
stabbing her repeatedly. Smith told Morris to get off Blair, and Morris “politely
just got up and walked to [Blair’s apartment], went in the [apartment], and closed
the door.” By that time, Morris had stabbed Blair over 30 times all over her body,
including her face, neck, arms, torso, and back. Smith called 911 and attempted to
tend to Blair’s injuries. When he saw Morris leaving Blair’s apartment, he told
Cox to watch where he went.
Houston police officers apprehended Morris shortly thereafter at a nearby
convenience store. Morris was returned to the scene for a show-up identification,
and both Smith and Cox positively identified Morris as the man they saw stabbing
Blair on their doorstep. Officers arrested Morris for aggravated assault of a family
member by causing serious bodily injury with a deadly weapon.
Morris filed pretrial motions requesting a psychiatric examination by the
Harris County Forensic Psychiatric Services to determine Morris’s sanity and the
appointment of an expert to conduct an independent psychological evaluation. By
one such motion, Morris alleged, in part, that he “suffers from diminished mental
capacity and PTSD.”
On April 1, 2014, Morris pleaded guilty to the reduced charge of aggravated
assault of a family member using a deadly weapon. By agreement of the parties, a
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PSI report was requested prior to sentencing. Morris’s trial counsel did not make
any objections to the PSI report at the sentencing hearing.
During the sentencing hearing, in addition to testimony detailing the charged
offense, the trial court heard testimony concerning Morris’s personal and family
history. Morris’s mother testified that he was tested in elementary school and
determined to be intellectually disabled. Dr. Cassandra Smisson, a clinical
psychologist, testified concerning tests that she administered, including an
assessment of Morris’s intellectual functioning. Based on those tests, Dr. Smisson
testified that Morris’s IQ was measured at 66, an extremely low range of
intellectual functioning. Dr. Smisson testified that she was unable to make a
formal diagnosis of Intellectual Disability because she did not have an opportunity
to measure Morris’s adaptive functioning.
The trial court assessed punishment at confinement in the Texas Department
of Criminal Justice, Institutional Division, for 20 years.
Right of Appeal
In his second issue, Morris asks that we reform the trial court’s written
judgment to remove the special finding which states “APPEAL WAIVED, NO
PERMISSION TO APPEAL GRANTED,” because he did not waive his right to
appeal. The State agrees that Morris did not waive his right to appeal and that the
trial court’s written judgment should be reformed as requested.
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“An appellate court has the power to correct and reform a trial court
judgment ‘to make the record speak the truth when it has the necessary data and
information to do so, or make any appropriate order as the law and nature of the
case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—
Dallas 1991, pet ref’d)); see also TEX. R. APP. P. 43.2(b) (“The court of appeals
may . . . modify the trial court’s judgment and affirm it as modified”). The
authority of the courts of appeals to reform judgments is not limited to mistakes of
a clerical nature. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993).
“Appellate courts have the power to reform whatever the trial court could have
corrected by a judgment nunc pro tunc where the evidence necessary to correct the
judgment appears in the record.” Asberry, 813 S.W.2d at 529.
On Morris’s motion, we abated this appeal and remanded to the trial court to
determine whether there was a valid waiver of appeal. On remand, the trial court
determined that Morris had not pleaded guilty in exchange for the reduced charge
and there was no sentencing recommendation when Morris pleaded guilty. See
TEX. R. APP. P. 25.2(a)(2). There is no indication in the record that Morris
otherwise waived his right to appeal. See Ex parte Broadway, 301 S.W.3d 694,
699 (Tex. Crim. App. 2009) (providing that “a defendant may knowingly and
intelligently waive his entire appeal as a part of a plea, even when sentencing is not
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agreed upon, where consideration is given by the State for that waiver”). The trial
court executed a new certification indicating that this is not a plea-bargain case and
Morris has the right of appeal. In light of the trial court’s corrected certification
and the record on abatement, we agree that Morris did not waive his right to appeal
and that the trial court’s judgment should be modified to delete the special finding
that Morris waived his right to appeal. See French v. State, 830 S.W.2d 607, 609
(Tex. Crim. App. 1992) (“[A]n appellate court has authority to reform a judgment
. . . to make the record speak the truth . . . .”).
We sustain Morris’s second issue.
Adequacy of Psychological Evaluation
In his first issue, Morris contends that the trial court erred in failing to
require that that the PSI report’s psychological evaluation include an adaptive
behavior score, as prescribed by Article 42.12, section 9(i) of the Texas Code of
Criminal Procedure.
A. Applicable Law
Before a trial court may impose a sentence on a defendant in a felony case,
the Texas Code of Criminal Procedure requires the trial court to direct a probation
officer to prepare and provide a written PSI report. TEX. CODE CRIM. PROC. art.
42.12 § 9(a). In certain cases, the PSI report must include a psychological
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evaluation which determines the defendant’s IQ and adaptive behavior score. Id. §
9(i). Article 42.12, section 9(i) provides:
A presentence investigation conducted on any defendant convicted of
a felony offense who appears to the judge through its own observation
or on suggestion of a party to have a mental impairment shall include
a psychological evaluation which determines, at a minimum, the
defendant’s IQ and adaptive behavior score. The results of the
evaluation shall be included in the report to the judge as required by
Subsection (a) of this section.
Id.
Even in felony cases, the right to have a trial court order preparation of a PSI
report may be forfeited by inaction. See Griffith v. State, 166 S.W.3d 261, 263
(Tex. Crim. App. 2005) (holding that defendant may waive right to preparation of
PSI report required by article 42.12, section 9(a)); Jimenez v. State, 446 S.W.3d
544, 550 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (considering whether
appellant preserved claim that trial court erred in not ordering PSI report required
by article 42.12, section 9(a)); Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—
Dallas 1994, pet. ref’d) (holding that right to a PSI report provided for by article
42.12, section 9(a) is subject to procedural default and may be forfeited by
inaction). Likewise, “[t]he right to a psychological evaluation may be
forfeited . . . .” Welch v. State, 335 S.W.3d 376, 382 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d) (citing Summers v. State, 942 S.W.2d 695, 696–97 (Tex.
App.—Houston [14th Dist.] 1997, no pet.)).
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“To preserve error, a party must specifically object to the omission of a
psychological evaluation from the presentence investigation report.” Id. (citing
Nguyen v. State, 222 S.W.3d 537, 542 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d); see also Brand v. State, 414 S.W.3d 854, 856 (Tex. App.—Houston [1st
Dist.] 2013, pet. ref’d) (concluding that appellant waived error by “not
challeng[ing] either the general adequacy of the PSI or its specific failure to
include a more complete psychological evaluation”).
B. Analysis
Morris complains that the trial court erred in failing to require that the PSI
report include an adaptive behavior score. Morris acknowledges that his trial
counsel failed to object to the omission and further acknowledges that several
courts of appeal have held that error in considering an incomplete report under
article 42.12, section 9(i) is waived if not objected to at trial. See e.g., Wright, 873
S.W.2d at 83, Nguyen, 222 S.W.3d at 542. Nonetheless, Morris argues that, under
Garrett v. State, 818 S.W.2d 227 (Tex. App.—San Antonio 1991, no pet.), which
he contends has been cited with approval by this Court, the mandatory provisions
of article 42.12, section 9(i) are not forfeited by a failure to object to a trial court’s
noncompliance.
In Garrett, the San Antonio Court of Appeals considered whether the trial
court erred in failing to order that a PSI report including a psychological evaluation
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be prepared prior to sentencing where the record reflected that the defendant may
have suffered from mental impairment. Garrett, 818 S.W.2d at 228. The State
argued that Garrett waived any complaint under article 42.12, section 9(i) by
failing to object to the lack of a PSI report. Id. at 229. The San Antonio court
observed that the provisions of article 42.12, section 9(i) constitute an express
legislative mandate, which courts may not judicially rewrite. Id. Thus, the court
concluded that, if evidence of mental impairment exists, the mandatory provisions
of article 42.12, section 9(i) cannot be forfeited by a defendant’s failure to object.
Id.
Contrary to the holding in Garrett, other Texas courts of appeals, including
this Court, have more recently held that complaints concerning the absence of a
PSI report or challenges to the adequacy of a psychological evaluation are subject
to procedural waiver. See, e.g., Brand, 414 S.W.3d at 854 (concluding that
appellant waived complaint on appeal by failing to “challenge either the general
adequacy of the PSI or its specific failure to include a more complete
psychological evaluation”); Welch, 335 S.W.3d at 382 (explaining that “right to a
psychological evaluation may be forfeited, just as the right to a presentence
investigation generally”); Nguyen, 222 S.W.3d at 542 (holding that trial court error
in not ordering a psychological evaluation is waived if not objected to at trial).
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For instance, in Nguyen, our sister court held that a “failure to object at trial
results in waiver on appeal of the trial court’s error in not ordering a psychological
evaluation.” Nguyen, 222 S.W.3d at 542. Though competency and sanity
evaluations had been conducted prior to Nguyen’s sentencing, neither contained an
IQ or adaptive behavior score, and Nguyen argued, in part, that the trial court erred
by not including an adequate psychological evaluation in the PSI report itself. Id.
at 541. The Fourteenth Court of Appeals reasoned that, because a psychological
evaluation is merely part of a PSI report and a defendant can waive the right to
object when no PSI report is prepared, it follows that a defendant can waive the
right to complain about the omission of part of the PSI report. Id. (“The right to a
part of the whole should not be given more protection than the right to the
whole.”). Thus, the court concluded that, notwithstanding its directory language,
the provisions of art. 42.12, section 9(i) are subject to procedural default. Id.
Because the record showed that Nguyen “failed to object at or after the sentencing
hearing to the [trial] court’s failure to order a report under section 9(i), or to the
failure of the competency and sanity evaluations to contain either an IQ score or an
adaptive behavior score,” any such error was waived. Id. at 542 (citing TEX. R.
APP. P. 33.1(a)).
We find the reasoning of Nguyen persuasive. To the extent that Garrett
directs a different result, we decline to follow it. Morris acknowledges and the
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record shows that defense counsel failed to object at or after the sentencing hearing
to the omission of an adaptive behavior score from the PSI report. Accordingly,
any error in omitting an adaptive behavior score is waived. TEX. R. APP. P.
33.1(a); Brand, 414 S.W.3d at 856; Nguyen, 222 S.W.3d at 542.
We overrule Morris’s first issue.
Conclusion
We modify the trial court’s judgment to strike the erroneous special finding
stating “APPEAL WAIVED, NO PERMISSION TO APPEAL GRANTED,” and
affirm the trial court’s judgment as modified.
Rebeca Huddle
Justice
Panel consists of Justices Keyes, Brown, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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