Opinion issued March 7, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00179-CR ——————————— CYNTHIA KAYE WOOD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1445251
MEMORANDUM OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS
Appellant, Cynthia Kaye Wood, pleaded guilty without an agreed
recommendation to the first-degree felony offense of attempted capital murder. Following completion of a presentence investigation (PSI) report, the trial court
conducted a sentencing hearing. At the conclusion of the hearing, the trial court
assessed appellant’s punishment at life imprisonment.
On appeal, appellant raised five points of error. In her first and second points
of error, appellant contended that the evidence was insufficient to support her guilty
plea to the offense of attempted capital murder. In her third point of error, she argued
that her sentence of life imprisonment was illegal. In her fourth point of error, she
asserted that her trial attorney rendered ineffective assistance of counsel. In her fifth
point of error, she argued that the trial court erred in proceeding with sentencing
without a complete psychological evaluation.
This Court overruled appellant’s first two points of error but sustained her
third point of error, holding that her sentence of life imprisonment was illegal. We
concluded that because the indictment in this case did not allege any of the
aggravating circumstances that elevate the offense of murder to capital murder, see
TEX. PENAL CODE § 19.03(a), the indictment did not authorize a conviction for
attempted capital murder but, instead, authorized a conviction for attempted murder,
a second-degree felony offense with a maximum sentence of confinement of twenty
years. See Wood v. State, No. 01-16-00179-CR, 2017 WL 4127835, at *6 (Tex.
App.—Houston [1st Dist.] Sept. 19, 2017), rev’d, 560 S.W.3d 162 (Tex. Crim. App.
2018). Finding her life sentence illegal, the Court reversed appellant’s conviction
2 for attempted capital murder, ordered the trial court to adjudge appellant guilty of
attempted murder, and remanded the case for a new sentencing hearing. See id.
On the State’s petition for discretionary review, the Court of Criminal Appeals
reversed, holding that appellant’s life sentence was not illegal. See Wood v. State,
560 S.W.3d 162, 168 (Tex. Crim. App. 2018). Noting that “an indictment charging
an attempted offense is not fundamentally defective for failure to allege the
constituent elements of the offense attempted[,]” the Court of Criminal Appeals
concluded that the indictment in this case properly charged attempted capital murder,
and that appellant pleaded to, and was properly sentenced for, the offense of
attempted capital murder. See id. The Court of Criminal Appeals remanded the case
to this Court with instructions to address appellant’s remaining two points of error.
See id. We affirm.1
Ineffective Assistance of Counsel
In her fourth point of error, appellant contends that her trial counsel rendered
ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668 (1984),
because he failed to object to the trial court’s imposition of an illegal sentence of life
imprisonment. In light of the Court of Criminal Appeals’s holding that appellant’s
life sentence is not illegal, trial counsel did not render ineffective assistance of
1 The factual and procedural backgrounds of the case are fully discussed in the prior opinions of this Court and the Court of Criminal Appeals. We do not repeat them here. 3 counsel on this ground. See Wood, 560 S.W.3d at 168. We overrule appellant’s
fourth point of error.
Adequacy of Psychological Evaluation
In her fifth point of error, appellant contends that the trial court erred in
proceeding with sentencing because the court-ordered psychological evaluation did
not include her intelligence quotient (IQ) or adaptive behavior score as required
under Article 42.12 of the Texas Code of Criminal Procedure.2
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 PSI report. TEX. CODE CRIM. PROC. art. 42.12 § 9(a).
In certain cases, the PSI report must include a psychological evaluation which
determines the defendant’s IQ and adaptive behavior score. Id. § 9(i). Article 42.12,
section 9(i) provided:
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.
2 This article was repealed by the Texas Legislature, effective September 1, 2017, and recodified as its own chapter, chapter 42A, of the Texas Code of Criminal Procedure. The substantive content referenced herein survives. See TEX. CODE CRIM. PROC. art. 42A.253(a)(6). 4 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 defendant
preserved claim that trial court erred in not ordering PSI report required by article
42.12, section 9(a)). Similarly, “[t]he right to a psychological evaluation may be
forfeited . . . .” Morris v. State, 496 S.W.3d 833, 837 (Tex. App.—Houston [1st
Dist.] 2016, pet. ref’d) (quoting Welch v. State, 335 S.W.3d 376, 382 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d)). “To preserve error, a party must specifically
object to the omission of a psychological evaluation from the presentence
investigation report.” Id. (quoting Welch, 335 S.W.3d at 382); see also Brand v.
State, 414 S.W.3d 854, 856 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).
B. Analysis
Appellant complains that the trial court erred in proceeding with sentencing
because her psychological evaluation did not include a determination of her IQ or
adaptive behavior score. The record reflects that the PSI report introduced into
evidence at the sentencing hearing included a competency evaluation form and a
forensic psychiatric evaluation prepared by the court-appointed psychiatric expert,
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Opinion issued March 7, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00179-CR ——————————— CYNTHIA KAYE WOOD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1445251
MEMORANDUM OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS
Appellant, Cynthia Kaye Wood, pleaded guilty without an agreed
recommendation to the first-degree felony offense of attempted capital murder. Following completion of a presentence investigation (PSI) report, the trial court
conducted a sentencing hearing. At the conclusion of the hearing, the trial court
assessed appellant’s punishment at life imprisonment.
On appeal, appellant raised five points of error. In her first and second points
of error, appellant contended that the evidence was insufficient to support her guilty
plea to the offense of attempted capital murder. In her third point of error, she argued
that her sentence of life imprisonment was illegal. In her fourth point of error, she
asserted that her trial attorney rendered ineffective assistance of counsel. In her fifth
point of error, she argued that the trial court erred in proceeding with sentencing
without a complete psychological evaluation.
This Court overruled appellant’s first two points of error but sustained her
third point of error, holding that her sentence of life imprisonment was illegal. We
concluded that because the indictment in this case did not allege any of the
aggravating circumstances that elevate the offense of murder to capital murder, see
TEX. PENAL CODE § 19.03(a), the indictment did not authorize a conviction for
attempted capital murder but, instead, authorized a conviction for attempted murder,
a second-degree felony offense with a maximum sentence of confinement of twenty
years. See Wood v. State, No. 01-16-00179-CR, 2017 WL 4127835, at *6 (Tex.
App.—Houston [1st Dist.] Sept. 19, 2017), rev’d, 560 S.W.3d 162 (Tex. Crim. App.
2018). Finding her life sentence illegal, the Court reversed appellant’s conviction
2 for attempted capital murder, ordered the trial court to adjudge appellant guilty of
attempted murder, and remanded the case for a new sentencing hearing. See id.
On the State’s petition for discretionary review, the Court of Criminal Appeals
reversed, holding that appellant’s life sentence was not illegal. See Wood v. State,
560 S.W.3d 162, 168 (Tex. Crim. App. 2018). Noting that “an indictment charging
an attempted offense is not fundamentally defective for failure to allege the
constituent elements of the offense attempted[,]” the Court of Criminal Appeals
concluded that the indictment in this case properly charged attempted capital murder,
and that appellant pleaded to, and was properly sentenced for, the offense of
attempted capital murder. See id. The Court of Criminal Appeals remanded the case
to this Court with instructions to address appellant’s remaining two points of error.
See id. We affirm.1
Ineffective Assistance of Counsel
In her fourth point of error, appellant contends that her trial counsel rendered
ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668 (1984),
because he failed to object to the trial court’s imposition of an illegal sentence of life
imprisonment. In light of the Court of Criminal Appeals’s holding that appellant’s
life sentence is not illegal, trial counsel did not render ineffective assistance of
1 The factual and procedural backgrounds of the case are fully discussed in the prior opinions of this Court and the Court of Criminal Appeals. We do not repeat them here. 3 counsel on this ground. See Wood, 560 S.W.3d at 168. We overrule appellant’s
fourth point of error.
Adequacy of Psychological Evaluation
In her fifth point of error, appellant contends that the trial court erred in
proceeding with sentencing because the court-ordered psychological evaluation did
not include her intelligence quotient (IQ) or adaptive behavior score as required
under Article 42.12 of the Texas Code of Criminal Procedure.2
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 PSI report. TEX. CODE CRIM. PROC. art. 42.12 § 9(a).
In certain cases, the PSI report must include a psychological evaluation which
determines the defendant’s IQ and adaptive behavior score. Id. § 9(i). Article 42.12,
section 9(i) provided:
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.
2 This article was repealed by the Texas Legislature, effective September 1, 2017, and recodified as its own chapter, chapter 42A, of the Texas Code of Criminal Procedure. The substantive content referenced herein survives. See TEX. CODE CRIM. PROC. art. 42A.253(a)(6). 4 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 defendant
preserved claim that trial court erred in not ordering PSI report required by article
42.12, section 9(a)). Similarly, “[t]he right to a psychological evaluation may be
forfeited . . . .” Morris v. State, 496 S.W.3d 833, 837 (Tex. App.—Houston [1st
Dist.] 2016, pet. ref’d) (quoting Welch v. State, 335 S.W.3d 376, 382 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d)). “To preserve error, a party must specifically
object to the omission of a psychological evaluation from the presentence
investigation report.” Id. (quoting Welch, 335 S.W.3d at 382); see also Brand v.
State, 414 S.W.3d 854, 856 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).
B. Analysis
Appellant complains that the trial court erred in proceeding with sentencing
because her psychological evaluation did not include a determination of her IQ or
adaptive behavior score. The record reflects that the PSI report introduced into
evidence at the sentencing hearing included a competency evaluation form and a
forensic psychiatric evaluation prepared by the court-appointed psychiatric expert,
5 but neither document included a determination of appellant’s IQ or adaptive
behavior score. Appellant acknowledges that she did not object to the omission and
that several courts of appeals have held that error in considering an incomplete report
under article 42.12, section 9(i) was waived if not objected to at trial. Nonetheless,
appellant urges us to follow Garrett v. State, 818 S.W.2d 227 (Tex. App.—San
Antonio 1991, no pet.), in which the San Antonio Court of Appeals held that the
mandatory provisions of article 42.12, section 9(i) were not forfeited by a failure to
object to a trial court’s noncompliance. See id. at 229.
This Court, as well as several of our sister courts, have declined to follow the
reasoning in Garrett. See Morris, 496 S.W.3d at 838 (holding defendant waived any
error in omission of adaptive behavior score from PSI report where defense counsel
failed to object at or after sentencing hearing to omission); see also Castello, 555
S.W.3d at 617–18 (citing Morris and rejecting defendant’s reliance on Garrett);
Nguyen v. State, 222 S.W.3d 537, 542 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d) (holding that party must object to omission of psychological evaluation from
PSI report to preserve error); Wright v. State, 873 S.W.2d 77, 83 (Tex. App.—Dallas
1994, pet. ref’d) (holding that right to PSI report provided for by article 42.12, § 9(a)
was subject to procedural default and could be forfeited by inaction). Following our
Court’s precedent in Morris, we decline to follow Garrett under the facts presented
in this case. Because appellant did not object to the omission of her IQ or adaptive
6 behavior score from the PSI report, any error is waived. See Morris, 496 S.W.3d at
838. Accordingly, we overrule her fifth point of error.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).