Gregory Jackson v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00146-CR
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GREGORY HAROLD JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 29295-B
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

On July 27, 2001, Gregory Harold Jackson was arrested at the Longview Amtrak station after police discovered the drug "ecstasy" in his luggage. Jackson pled guilty (no plea bargain) to possession of more than four grams but less than 400 grams of ecstasy. He was sentenced to five years' imprisonment with no fine assessed. In one point of error, Jackson contends the trial court erred in sentencing him without a substance abuse evaluation.

Jackson's contention is based on Tex. Code Crim. Proc. Ann. art. 42.12, 9(h) (Vernon Supp. 2003), which provides that, on determination that alcohol or drug abuse may have contributed to the commission of the offense, the trial court shall direct the preparation of an evaluation to determine the appropriateness of rehabilitation for the defendant. Article 42.12, Section 9(h)(2) specifically provides that the "evaluation shall be made: . . . after conviction and before sentencing, if the judge assesses punishment in the case."

Article 42.12 requires the court to order the evaluation after it determines that alcohol or drug abuse may have contributed to the commission of the offense. But it does not specify whether this determination is to be made sua sponte by the court, or whether the defendant must request such a finding in order to bring the statute into play. Here, the court made no such determination and Jackson did not request an evaluation in this case. In addressing this issue, we have held that a timely objection or request is a prerequisite to presenting the issue for appellate review. Caster v. State, 87 S.W.3d 751 (Tex. App.-Texarkana 2002, no pet.) (citing Tex R. App. P. 33.1(a)).

Jackson, however, contends the trial court was required, sua sponte, to order a presentencing evaluation. Specifically, he points to the word "shall" in the statute as mandatory language requiring the trial court to order an evaluation. (1) Jackson is correct that an evaluation is mandatory once a court finds that alcohol or drug abuse contributed to the commission of the offense. The statute's mandatory language, however, does not apply to the initial finding that alcohol or drug abuse so contributed. We believe a party must make an initial request for such a finding or else it is waived. In Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim App. 1993), overruled on other grounds, 891 S.W.2d 267 (Tex. Crim. App. 1994), the Texas Court of Criminal Appeals discussed, in-depth, the types of rights that can be waived if not objected to or requested at trial. According to the Texas Court of Criminal Appeals, most rights based on "evidentiary and procedural rules" can be waived if not requested. See Marin, 851 S.W.2d at 278. This general proposition has been construed to apply to presentencing evaluations because presentence investigation (PSI) reports have an evidentiary basis. See Wright v. State, 873 S.W.2d 77, 83 (Tex. App.-Dallas 1994, pet. ref'd) (holding right to have trial court order preparation of PSI report before sentencing is forfeitable by inaction). As we stated in Caster, "a timely objection or request is a prerequisite to . . . appellate review . . . and in the absence of such an objection or request, we may not address the issue on appeal."

Jackson's point of error is overruled, and we affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: February 26, 2003

Date Decided: March 26, 2003

 

Do Not Publish

 

1. Tex. Code Crim. Proc. Ann. art. 42.12, 9(h) (Vernon Supp. 2003) provides, in pertinent part: "On a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense, . . . the judge shall direct . . . an evaluation to determine the appropriateness of, and a course of conduct necessary for, alcohol or drug rehabilitation for a defendant and to report that evaluation to the judge." (Emphasis added.)