Thomas Wayne McKinney v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12-04-00149-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THOMAS WAYNE MCKINNEY, APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Thomas Wayne McKinney pleaded guilty to aggravated sexual assault of a child and sexual assault of a child. Following a hearing on punishment, Appellant was sentenced to imprisonment for life on the aggravated sexual assault of a child charge and twenty years of imprisonment on the sexual assault of a child charge. In one issue, Appellant contends that the trial court erred by not ordering a psychological evaluation to be included in his pre-sentence investigation ( PSI ). We affirm.

Background

On April 10, 2003, Appellant was indicted for aggravated sexual assault of a child and sexual assault of a child. // On January 15, 2004, the trial court held a hearing for Appellant to enter an open guilty plea. At the beginning of the plea hearing, Appellant s counsel stated that he was requesting thirty days to get ready for sentencing because we ll need a psychological review. The court agreed and proceeded with the hearing. Appellant then pleaded guilty to both charges and the court ordered that a PSI be completed before assessing punishment.

On March 11, the trial court heard testimony and arguments on Appellant s sentencing. The record indicates that Appellant received a copy of the PSI on Monday, March 8. The PSI apparently did not include a psychological evaluation of Appellant at the time it was compiled. // At the beginning of the hearing, Appellant s counsel orally moved to include a psychological evaluation with a minimum of an IQ standard in the PSI before Appellant s sentence was pronounced. The trial court denied the motion.

At the conclusion of the hearing, the trial court sentenced Appellant to imprisonment for life on the aggravated sexual assault of a child charge and twenty years of imprisonment on the sexual assault of a child charge. Appellant timely filed a notice of appeal on March 25.

Review of Trial Court s Ruling on Objection to the PSI

In his sole issue, Appellant contends that the trial court erred by not requiring him to undergo psychological testing in order to include the results of that testing in the PSI. Section 9(i) of Article 42.12 of the Texas Code of Criminal Procedure mandates that

[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.

Tex. Code Crim. Proc. Ann. art. 42.12, 9(i) (Vernon Supp. 2004-05). The phrase mental impairment encompasses mental weakness, deterioration, or damage. Garrett v. State, 818 S.W.2d 227, 229 (Tex. App. San Antonio 1991, no pet.).

At the beginning of Appellant s plea hearing, he acknowledged that he understood 1) the charges against him, 2) the waiver of his right to a trial, and 3) the ramifications of pleading guilty to the charges against him. Appellant s counsel even acknowledged that he believed Appellant was competent to stand trial.

At the hearing on Appellant s sentencing, the court stated that it did not appear to her that Appellant was mentally impaired or incompetent to stand trial. Appellant s counsel stated to the court only that Appellant was in special ed his entire educational experience and has problems reading and writing. Appellant s counsel further expressed to the court that he was not arguing that [Appellant is] mentally incapacitated.

Appellant has not directed us to, nor can we find, anywhere in the record to demonstrate that 1) Appellant appeared to the trial court to have a mental impairment or 2) a party suggested to the court that Appellant has a mental impairment. Accordingly, Appellant s sole issue is overruled.

Disposition

The judgment of the trial court is affirmed.

DIANE DEVASTO

Justice

Opinion delivered August 17, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)