Derek McKay Davidson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 28, 2021
• Docket: 10-19-00149-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00149-CR

DEREK MCKAY DAVIDSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Bosque County, Texas Trial Court No. CR15566

MEMORANDUM OPINION

In one issue, appellant, Derek McKay Davidson, argues that the trial court violated

his substantial rights when it failed to have a pre-sentence investigation report (“PSI”)

prepared prior to sentencing. We affirm.

I. BACKGROUND

Davidson was charged by indictment with one count of aggravated assault with a

deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2). Davidson waived his right to a jury trial, entered an open plea of guilty, and requested to be put on community

supervision. At the plea hearing, the judge found Davidson guilty of the charged offense,

found that a deadly weapon was used in the commission of the offense, and scheduled

the sentencing hearing for five weeks later. At the sentencing hearing, Davidson

requested that a PSI be completed prior to sentence being imposed. The trial judge took

the request under advisement and proceeded.

Near the end of the sentencing hearing, Davidson again requested that a PSI be

completed for the judge’s review, but the judge determined that the court had sufficient

information to meaningfully exercise its sentencing discretion without a PSI.

Consequently, the judge sentenced Davidson to eight years’ imprisonment with a $1,000

fine. The trial court certified Davidson’s right of appeal, and this appeal followed.

II. ANALYSIS

Davidson contends that the trial court violated his substantial rights by denying

his request to have a PSI prepared before sentencing. Assuming without deciding that

the trial judge erred by failing to direct a supervision officer to prepare a PSI, see TEX.

CODE CRIM. PROC. ANN. art. 42A.252(c), we conclude that the error, if any, was harmless.

A. Applicable Law

The failure to order a PSI constitutes non-constitutional error subject to the

harmless error provisions of Texas Rule of Appellate Procedure 44.2(b). See Whitelaw v.

State, 29 S.W.3d 129, 132 (Tex. Crim. App. 2000); Scarborough v. State, 54 S.W.3d 419, 425-

Davidson v. State Page 2 26 (Tex. App.—Waco 2001, pet. ref’d); see also TEX. R. APP. P. 44.2(b) (“Any other error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.”). An error affects substantial rights if it “had a substantial and injurious

effect or influence in determining the [court’s] verdict.” Scarborough, 54 S.W.3d at 426

(internal citations omitted).

B. Discussion

In assessing how a purported error impacted the trial court’s punishment decision,

reviewing courts consider “the entire record, the nature of the evidence supporting the

punishment decision, the character of the error, and how it might be considered in

connection with other evidence in the case.” Yarbrough v. State, 57 S.W.3d 611, 619 (Tex.

App.—Texarkana 2001, pet. ref’d).

Here, the omission of a PSI did not affect Davidson’s substantial rights for several

reasons. First, prior to sentencing, Davidson received a full punishment hearing, which

consisted of the testimony of nine witness, including Davidson himself. See Whitelaw, 29

S.W.3d at 132 (noting that, “[t]he fact that the defendant had a full punishment hearing

may well impact whether the error was harmless”). The testimony covered a wide range

of information, including Davidson’s financial responsibility to his child, his own

traumatic childhood, and his willingness to rehabilitate.

Additionally, the information ordinarily supplied by the PSI was not materially

different from that which was adduced at the hearing. In other words, if the record

Davidson v. State Page 3 testimony was insufficient to convince the trial judge to grant community service, the

information included in the standard PSI was unlikely to have made a difference. In fact,

at the conclusion of the sentencing hearing, the trial judge listed the information provided

in each section of the Bosque County PSI report and concluded that the testimony

sufficiently addressed each section.

In any event, Davidson argues that the PSI would have outlined a supervision plan

and provided information about substance abuse treatment options and that neither of

these items were addressed at the sentencing hearing. However, as the State points out,

the trial judge was likely familiar with the treatment options available, especially since,

contrary to Davidson’s assertion, the options were mentioned at the hearing.

Furthermore, as the State posits, the trial judge could have concluded that Davidson was

not fit for community service based on testimony highlighting, among other things, his

repeated drug use and his inability to make and keep appointments.

Finally, Davidson contributed to the problem of which he now complains by

failing to attend his scheduled PSI appointment. According to the record, Davidson

scheduled a PSI appointment for March 26, 2019, eight days after his pretrial hearing.

Davidson did not show up to this appointment, nor did he reschedule until the day of his

sentencing hearing on April 22, 2019. When the trial judge asked Davidson why he

missed his initial appointment, he explained that he lost his job and moved to another

town, where he was camping out and without a phone or transportation. Regardless, the

Davidson v. State Page 4 record reflects that Davidson never asked for a continuance so that a PSI could be

prepared, which is of particular importance since his new appointment was set for two

days after the sentencing hearing.

Therefore, based on the foregoing, we cannot say that the purported error had a

substantial and injurious effect or influence in determining Davidson’s sentence in this

case. See Scarborough, 54 S.W.3d at 426; see also TEX. R. APP. P. 44.2(b). We overrule

Davidson’s sole issue on appeal.

III. CONCLUSION

We affirm the judgment of the trial court.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Wright1 Affirmed Opinion delivered and filed July 28, 2021 Do not publish [CR25]

1 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.

Davidson v. State Page 5