Ruben Barron Juarez v. The State of Texas--Appeal from 265th District Court of Dallas County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00257-CR

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RUBEN BARRON JUAREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court

Dallas County, Texas

Trial Court No. F05-55076-MR

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Nineteen-year-old Ruben Barron Juarez pled guilty to the offense of aggravated robbery. See Tex. Pen. Code Ann. 29.03 (Vernon 2003). During his plea colloquy, Juarez admitted that recent problems with prescription drugs and marihuana contributed to his criminal behavior.

The trial court accepted Juarez' plea and found the evidence substantiated his guilt. The trial court, however, postponed the sentencing phase of the hearing so that the community supervision and corrections department could conduct a presentence investigation (PSI). See Tex. Code Crim. Proc. Ann. art. 42.12, 9 (Vernon Supp. 2005). The trial court also ordered Juarez to submit to a psychological interview and a substance abuse evaluation as part of the PSI.

When the proceedings reconvened approximately two weeks later, the trial court reviewed the PSI report on the record. The record affirmatively shows the community supervision and corrections department did not perform the substance abuse evaluation, even though such had been previously ordered by the trial court. Nevertheless, neither side objected to this oversight. The trial court ultimately imposed a sentence of fifteen years' imprisonment. On appeal, Juarez now contends the trial court erred by failing to order a substance abuse evaluation and a psychological evaluation of Juarez before sentencing him.

Article 42.12, Section 9(h) of the Texas Code of Criminal Procedure mandates that a substance abuse evaluation be conducted after conviction and before sentencing in a felony case when the trial court is the sentencing entity and when the trial court determines alcohol or drug abuse may have contributed to the commission of the crime. "Nevertheless, a party must assert his or her right to a substance abuse evaluation or it is waived." Alberto v. State, 100 S.W.3d 528, 529 (Tex. App. Texarkana 2003, no pet.). Juarez did not raise any objection in the trial court to the absence of a substance abuse evaluation. Accordingly, Juarez has waived this issue for appellate review.

There being no other points of error presented, we affirm the trial court's judgment.

Donald R. Ross

Justice

Date Submitted: July 24, 2006

Date Decided: July 25, 2006

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