Kenric Henry v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 24, 2025
• Docket: 01-24-00389-CR
• Status: Published

Opinion

Opinion issued June 24, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00389-CR ——————————— KENRIC HENRY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 21-DCR-098040

MEMORANDUM OPINION

Kenric Henry shot his wife seven times. He then put the firearm to her head

and pulled the trigger—but it jammed. He hit her face with the jammed weapon.

She survived, but with extensive injuries and permanent damage. Henry later entered a plea of guilty to first-degree aggravated assault of a

family member—causing serious bodily injury with a deadly weapon.1 The trial

court ordered a presentence investigation (PSI). After a punishment hearing, the

trial court assessed Henry’s punishment at confinement for 30 years and entered an

affirmative finding that he used a deadly weapon.

On appeal, Henry contends that the trial court erred in assessing his

punishment without a complete PSI report. He complains that the report failed to

include the statutorily required psychological evaluation and military history.

We affirm.

Background

At the punishment hearing, Henry’s wife, Tiffeny Henry, testified that she

suffered years of abuse by Henry during their marriage. On the day of the shooting,

Henry and Tiffeny were at home, arguing about getting a divorce. Tiffeny’s two

sons were upstairs. Tiffeny went into a bedroom and called her mother. Henry

followed her, and the argument continued. While Tiffeny was on the phone, Henry

appeared with a firearm and began shooting. He shot her in the stomach twice and

five times in the legs—fracturing her right femur. Tiffeny saw one of her sons,

C.C.D., in the doorway of the room as Henry held the gun to her head and pulled the

trigger. When it failed to fire, he beat her face with the gun. She could “hear the

1 See TEX. PENAL CODE § 22.02(b)(1); see also TEX. CODE CRIM. PROC. art. 42.013.

2 cracks” in her face. When Henry stopped and walked away, Tiffeny pulled herself

under the bed to hide and called 911.

C.C.D. testified that Henry yelled, as he came out of the bedroom, “We all

going to die in this bitch.” As Henry was reloading the gun, C.C.D. ran to a

neighbor’s house for help.

The trial court heard testimony regarding Tiffeny’s injuries, surgery, lengthy

recovery, and permanent numbness in her right foot.

Fort Bend County Corrections Officer M. Lal testified that she conducted a

PSI and authored a report. She met with Henry and reviewed his records from the

United States Department of Veterans Affairs (VA). The parties stipulated to the

PSI report, and the trial court admitted it into evidence.

The PSI report documents the facts of the offense, as given by Henry, Tiffeny,

and law enforcement. It also discusses Henry’s personal history. It states that he

was in the military from 1996 to 2000 and was honorably discharged. It notes that

Henry reported having been diagnosed with post-traumatic stress disorder (PTSD),

severe depression, anxiety, panic and bipolar disorder, and alcoholism. And he was

under the care of a psychiatrist and therapist. The report includes Henry’s Texas

Risk Assessment System survey results.

The trial court also admitted into evidence a Psychological Evaluation by

licensed psychologist Tonya Martin. The 18-page Evaluation includes extensive

3 discussion of Henry’s mental health history and services—based on Martin’s review

of Henry’s VA records and her clinical interview with Henry. It also includes

lengthy discussion of Henry’s Personality Assessment Inventory (PAI). Henry’s

military service and its effects on his mental health are also discussed.

During the hearing, the defense called Martin to testify regarding the

Evaluation. She noted that it was court-ordered for purposes of the PSI. She

discussed Henry’s military service—noting that he had experienced significant

anxiety from skydiving drills, but that he did not serve in a combat role. According

to her review, the VA diagnosed Henry with PTSD, major depressive disorder, and

alcohol-abuse disorder. He was on medication and in therapy. Martin also discussed

her findings from the PAI. She diagnosed Henry with “alcohol use disorder,” major

depressive disorder, and “unspecified anxiety disorder.” And she “note[d] the prior

history of [PTSD].”

The State’s rebuttal witness, licensed clinical psychologist Jennie Collins

Boyd, testified that the VA records do not reflect a definitive diagnosis of PTSD.

Rather, there is a note to “rule-out” PTSD—meaning that it was “to be considered.”

She clarified that, in the records, Henry said that he has PTSD from skydiving drills

in the military. And this does not constitute a justification or mitigation factor for

shooting a spouse.

4 At the conclusion of the hearing, the trial court sentenced Henry to

confinement for 30 years.

PSI Report

Henry argues that the trial court erred in assessing his punishment based on

an incomplete PSI report. He complains for the first time on appeal that “the PSI

report failed to include [a] psychological evaluation”—including his IQ and adaptive

functioning score—and his military record, in violation of article 42A.253 of the

Texas Code of Criminal Procedure.

The State responds that Henry waived his complaint because he failed to raise

it in the trial court and instead stipulated to the PSI report.

PSI reports are prepared by supervision officers at the direction of the trial

court and contain general punishment-phase evidence to assist the court in

determining the sentence to assess. Stringer v. State, 309 S.W.3d 42, 45 (Tex. Crim.

App. 2010); see TEX. CODE CRIM. PROC. art. 42A.252.

A PSI report must be in writing and include, as pertinent here:

(6) the results of a psychological evaluation of the defendant that determines, at a minimum, the defendant’s IQ and adaptive behavior score if the defendant: (A) is convicted of a felony offense; and (B) appears to the judge, through the judge’s own observation or on the suggestion of a party, to have a mental impairment; (7) information regarding whether the defendant is a current or former member of the state military forces or whether the 5 defendant currently serves or has previously served in the armed forces of the United States in an active-duty status and, if available, a copy of the defendant’s military discharge papers and military records; (8) if the defendant has served in the armed forces of the United States in an active-duty status, a determination as to whether the defendant was deployed to a combat zone and whether the defendant may suffer from [PTSD] or a traumatic brain injury[.]

TEX. CODE CRIM. PROC. art. 42A.253(a)(6), (7), (8).

The Texas Court of Criminal Appeals has long held that a defendant may

waive the right to have a trial court order a PSI report. See Griffith v. State, 166

S.W.3d 261, 263 (Tex. Crim. App. 2005). Further, this Court and others have held

that complaints about the adequacy of a PSI report are waivable. See Morris v. State,

496 S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); see also

Nguyen v. State, 222 S.W.3d 537, 541 (Tex. App.—Houston [14th Dist.] 2007, pet.

ref’d) (“The right to a part of the whole should not be given more protection than

the right to the whole.”).

Psychological evaluation

Henry argues that the PSI report is substantively inadequate because “there is

no mention of a psychological evaluation performed as part of the PSI, nor is there

any information about [his] IQ or adaptive behavior score.” He complains that

Martin’s evaluation was “defense provided” and that the trial court failed to order an

“independent evaluation.”

6 Our Court has specifically held that the “right to a psychological evaluation

may be forfeited.” Morris, 496 S.W.3d at 837 (internal quotations omitted); see also

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 [PSI] report.” Id. (quoting Nguyen, 222 S.W.3d

at 542); see also Brand v. State, 414 S.W.3d 854, 856 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref’d) (error waived by “not challeng[ing] either the general

adequacy of the PSI or its specific failure to include a more complete psychological

evaluation”).

Henry concedes that he did not object in the trial court to any inadequacy in

the PSI report. He argues, rather, that the provisions of article 42A.253 are

mandatory and cannot be waived. And he urges us to follow the reasoning in Garrett

v. State, 818 S.W.2d 227 (Tex. App.—San Antonio 1991, no pet.).

In Garrett, the San Antonio court of appeals concluded that the trial court

erred in failing to order a PSI report with a psychological evaluation because the

record reflected that the defendant may have suffered from mental impairment. Id.

at 229. The court held that the requirements of the statute2 cannot be forfeited by a

failure to object. Id.

2 Texas Code of Criminal Procedure article 42.12 § 9(i) was repealed, effective September 1, 2017, and recodified as article 42A.253(a)(6).

7 This Court’s binding precedent “squarely rejects [Henry’s] contention.”

Castello v. State, 555 S.W.3d 612, 617 (Tex. App.—Houston [1st Dist.] 2018, pet.

ref’d). This Court, as well as several of our sister courts, have declined to follow the

reasoning in Garrett and have instead consistently made clear that a defendant

waives omissions related to the psychological evaluation in a PSI report by failing

to specifically object in the trial court. See id. at 618 (declining to follow Garrett);

Morris, 496 S.W.3d at 837–38 (rejecting Garratt and holding that failure to object

to omission of adaptive behavior score from PSI report was waived); Brand, 414

S.W.3d at 856 (complaint that PSI was inadequate because it lacked more complete

mental health evaluation was waived).3

We are bound to follow our Court’s precedent. See, e.g., Sealy IDV Thompson

10, LLV v. Harris Cnty. Appraisal Dist., No. 01-22-00584-CV, 2024 WL 269531, at

*2 (Tex. App.—Houston [1st Dist.] Jan. 25, 2024, no pet.) (mem. op.) (citing

Mitschke v. Borromeo LLC, 645 S.W.3d 251, 256–57 (Tex. 2022) (discussing

horizontal stare decisis)). We thus decline to follow Garrett. Because it is

undisputed the Henry did not object in the trial court to the adequacy of the PSI

3 See also Weathers v. State, No. 02-19-00032-CR, 2019 WL 4010359, at *1 (Tex. App.—Fort Worth Aug. 26, 2019, pet. ref’d) (mem. op., not designated for publication); Welch v. State, 335 S.W.3d 376, 382 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (“The right to a psychological evaluation may be forfeited, just as the right to a [PSI] generally.”); Turner v. State, No. 05-09-01045-CR, 2010 WL 2525081, at *1 (Tex. App.—Dallas June 24, 2010, no pet.) (mem. op., not designated for publication) (rejecting reliance on Garrett).

8 report, we hold that he has not preserved his complaint for appellate review. See

Morris, 496 S.W.3d at 838; Brand, 414 S.W.3d at 856.

Moreover, at sentencing, the trial court had before it Martin’s Psychological

Evaluation—which is more extensive than the statute requires. See TEX. CODE CRIM.

PROC. art. 42A.253(a)(6). Although it was separate from the PSI report, the trial

court had it to consider alongside the PSI. See Nguyen, 222 S.W.3d at 542 (“As long

as the evaluation[] [was] before the court at sentencing, it is inconsequential whether

[it] was part of the PSI or separate from it.”).

To the extent Henry complains that the trial court erred by not sua sponte

ordering a psychological evaluation, we note that Martin’s Evaluation states that it

is a “court-ordered” “independent psychological evaluation.” And Martin testified

that her evaluation was court-ordered for purposes of the PSI. Because the

Evaluation was admitted without objection, the issue is waived. See Morris, 496

S.W.3d at 838; Brand, 414 S.W.3d at 855–56.

Military history

Henry also argues that the PSI is “missing statutorily mandated information

regarding his military history”—namely, article 42A.253(a)(7) and (8), which

require information regarding whether he was deployed to a combat zone and

whether he “may suffer from PTSD or traumatic brain injury.”

9 Again, because it is undisputed the Henry did not object to any omissions from

the PSI report, we hold that he has not preserved his complaint for appellate review.

See Morris, 496 S.W.3d at 838; see also Nguyen, 222 S.W.3d at 541.4 Moreover, as

discussed above, the Evaluation and testimony addressed these matters.

Conclusion

We affirm the trial court’s judgment in all things.

Terry Adams Chief Justice

Panel consists of Chief Justice Adams and Justices Caughey and Johnson.

Do not publish. TEX. R. APP. P. 47.2(b).

4 See, e.g., Pinson v. State, No. 02-16-00225-CR, 2016 WL 7240682, at *1 (Tex. App.—Fort Worth Dec. 15, 2016, no pet.) (mem. op., not designated for publication) (error waived by not objecting to absence of military history in PSI). 10