Garrett v. State

818 S.W.2d 227, 1991 Tex. App. LEXIS 2838, 1991 WL 244894

Opinions

OPINION

BIERY, Justice.

John Edward Garrett, appellant, was convicted by a jury of the offense of burglary of a habitation; punishment was assessed by the trial judge at ninety-nine years in prison.

Appellant presents one point of error in which he contends the trial court erred in sentencing him without first having prepared a presentence report pursuant to TEX.CODE CRIM.PROC.ANN. art. 42-12, § 9(i) (Vernon Supp.1991). Appellant contends the statute is mandatory when it appears to the court that a person convicted of a felony has a mental impairment, and evidence of “mental illness” is the equivalent of “mental impairment.” We reverse for error in the punishment phase only.

In pretrial proceedings, the trial court ordered appellant to be examined by a psychiatrist to determine his competency to stand trial. Specifically, appellant was to be evaluated as to whether he was mentally ill or mentally retarded. In the first of two reports, the county psychiatrist found appellant was not presently competent to stand trial, was mentally ill, but it was substantially probable that he would attain competency in the foreseeable future. The report also found that appellant was not mentally retarded. Appellant was found to have “mixed organic brain syndrome and undifferentiated schizophrenia,” and his “intellectual functioning [was] estimated to be below average based on his general fund of knowledge, vocabulary, and complexity of concepts.” Appellant was found to have an IQ of 95, and his educational evaluation showed that in reading, spelling, and arithmetic, he was at the beginning sixth to eighth grade level; however, his reading skills were only at the fourth grade level. Subsequently, appellant was found competent to stand trial.

Upon receiving the jury’s verdict of guilt, the trial court proceeded to the punishment phase, the appellant having elected to have the trial judge assess punishment. In addition to the mental health evidence already heard by the trial judge in the competency hearing, additional evidence was presented at the punishment phase consisting of records of the San Antonio State Hospital of the Texas Department of Mental Health and Mental Retardation concerning the appellant.

The following issues are presented:

1) Does TEX.CODE CRIM.PROC.ANN. art. 42.12 § 9(i) (Vernon Supp.1991) mandate that a presentence investigation be conducted when the circumstances therein stated are present?

2) Does this record sufficiently establish a “mental impairment,” thereby invoking the provisions of art. 42.12 § 9(i)?

3) If the provisions of art. 42.12 § 9(i) are invoked, can the requirement under this article be waived by appellant’s failure to object to the trial court’s proceeding to sentence without the investigation?

Under the provisions of art. 42.12 § 9(i), it is mandatory that:

A presentence investigation shall be conducted on any offender convicted of a felony offense if it appears to the court through its own observation or on suggestion of a party that the defendant may have a mental impairment. The pre-sentence investigation 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 court as required by Subsection (a) of this section.

TEX.CODE CRIM.PROC.ANN. art. 42.12 § 9(i) (Vernon Supp.1991) (emphasis added). Webster’s dictionary associates impairment with a weakness, deterioration, or damaged condition. Thus, it would necessarily follow that “mental impairment” would encompass a mental weakness, deterioration, or damage. If the record reflects that such a condition may exist, the legislature has required the presentence investigation. TEX.CODE CRIM.PROC.ANN. art. 42.12 § 9(i) (Vernon Supp.1991).

Considering the appellant’s history of mental illness, as fully outlined in the concurring opinion, it appears the appellant may have had a mental impairment. Therefore, a presentence investigation was required.

The State contends the appellant waived any complaint under art. 42.12 § 9(i) by failing to object to the lack of a presentence investigation. We are unable to find any authority to justify the contention that the provisions of art. 42.12 § 9(i) can be forfeited if evidence of mental impairment exists. The statement of facts reveals that at the sentencing hearing, appellant’s counsel had no additional evidence on the mental issue only because the court had already heard all the evidence presented during the competency hearing. Further, the very last plea appellant’s counsel made to the court before the court sentenced the appellant was that appellant “need[ed] help,” that appellant needed “proper treatment,” that TDCJID did not have “the kind of programs that [appellant] need[ed],” and that appellant “need[ed] the support of his family, the State Hospital, and therapy.”

As a practical matter, the presentence report will contain the mental health information already in the trial court record, albeit on a form entitled “presentence report.” There may, however, be additional, subsequent information or suggestions for treatment embodied in the report. Moreover, the ultimate result may be the same; however, we hold that we are not authorized to judicially rewrite an express legislative mandate. See Sodipo v. State, 815 S.W.2d 551 (Tex.Crim.App.1991) (opinion on State’s motion for rehearing).

The cause is remanded for new trial on the punishment phase only. TEX.CODE CRIM.PROC.ANN. art. 44.29(b) (Vernon Supp.1991).