                              NUMBER 13-07-740-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


PABLO BAUTISTA ARREDONDO, JR.,                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


  On appeal from the 206th District Court of Hidalgo County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

      Appellant, Pablo Bautista Arredondo, Jr., appeals his convictions for felony driving

while intoxicated, TEX . PENAL CODE ANN . § 49.09(b) (Vernon Supp. 2007), and possession

of a controlled substance. TEX . HEALTH & SAFETY CODE ANN . § 481.115(a), (b) (Vernon

2003). After pleading guilty, Arredondo was sentenced to six years’ confinement in the

Institutional Division of the Texas Department of Criminal Justice for the felony DWI, and
two years’ confinement in the state jail division of the Texas Department of Criminal Justice

for the drug possession, with the sentences to run concurrently. On appeal, Arredondo

argues that the trial court erred by failing to order an alcohol and drug evaluation or,

alternatively, by failing to consult the evaluation before sentencing. See TEX . CODE CRIM .

PROC . ANN . art. 42.12 § 9(h) (Vernon 2006). Because Arredondo failed to object in the trial

court, he has waived any error. Accordingly, we affirm.

                                                  I. Background

         On June 28, 2007, Arredondo was arrested for driving while intoxicated and

possession of less than one gram of cocaine. He was indicted by a grand jury on August

16, 2007. The indictment alleged that prior to his arrest on June 28, Arredondo had been

convicted of driving while intoxicated on three prior occasions.

         On September 5, 2007, Arredondo appeared in court and pleaded guilty to the

charges in the indictment and “true” to the indictment’s enhancement paragraphs. The trial

court inquired whether the defendant was requesting a pre-sentence investigation report

(“PSI”), and defense counsel indicated that Arredondo was seeking placement in a

Substance Abuse Felony Punishment Facility (SAFPF)1:

         The Court:                   Were you requesting the PSI?

         Defense Counsel:             Your Honor, if the court is so inclined, Your Honor. My
                                      client has admitted that he is guilty of these two
                                      charges, Your Honor, and—but he’s seeking rehab,
                                      Your Honor.      He feels that he has a drinking
                                      problem/drug problem and he would like, instead of just
                                      being sent to prison where they—from a practical
                                      standpoint, he says that they don’t offer rehab there.
                                      So he was looking for maybe [SAFPF] so that he could

         1
         See T EX . C OD E C R IM . P R O C . A N N . art. 42.12 § 14 (Vernon 2006); T EX . H EALTH & S AFETY C OD E A N N .
§ 493.009 (Vernon 2004).
                                                             2
                            receive some serious treatment for his problems.

The trial court ordered a PSI report and reset the case for a sentencing hearing.

       On October 17, 2007, Arredondo appeared for sentencing. Arredondo again

indicated that he was seeking drug and alcohol treatment. The trial court inquired whether

Arredondo had ever received treatment in connection with his prior alcohol-related

offenses. Arredondo’s counsel and the prosecutor informed the court that Arredondo had

received shock probation and substance-abuse treatment three or four years earlier for his

prior DWI offense. After treatment, his probation was revoked, and he served four years

in prison.

       The trial court inquired why Arredondo’s probation had been revoked, and

Arredondo’s counsel informed the court that Arredondo “didn’t make some of the meetings

and . . . was unable to pay some of the fees.” The trial court attempted to locate the order

revoking Arredondo’s prior probation, referring to a “sentencing report.” The trial court

recessed the hearing to confirm the reason for the prior revocation.

       After a brief recess, the trial court again discussed with the attorneys whether

Arredondo’s probation had been revoked for failure to pay fees and failure to attend

outpatient alcohol treatment meetings. Defense counsel again explained that Arredondo

did not attend alcohol treatment meetings because he did not have transportation.

       The trial court then specifically asked whether Arrendondo was “screened for

SAPFP.” The prosecutor stated that he was “screened” and confirmed that Arredondo was

eligible for alcohol and drug treatment. The trial court then stated that, once the records

from the prior convictions were available, it would confirm the reasons for Arredondo’s prior

revocation of probation and consider treatment as an option.
                                             3
      The trial court then gave Arredondo one last chance to confirm the reasons for the

revocation of probation:

      The Court:           I suspect that if I pulled the old file, that there’s going to
                           be some things that you’re not remembering as to why
                           you ended up getting revoked on this. And it’s not just
                           simply because you had no transportation to go to A.A.
                           and therefore I revoked you to prison.

      The Defendant:       Yes, ma’am.

      The Court:           I would venture to say that there’s some other reason.
                           But in an over abundance of caution, I’m going to have
                           everyone request their files from storage, [sic] I’ll look at
                           it. And it will not be in your best interest if I find out
                           what the other real reasons were that you were
                           revoked, not the excuse of no transportation.

      The Defendant:       Yes, ma’am.

      The Court:           So unless you have an all of a sudden refreshed
                           recollection of why you were revoked?

      The Defendant:       Yes, ma’am. I didn’t make the meetings, I didn’t do the
                           community service hours. I did put the machine in my
                           mom’s car, I didn’t pay and I started drinking in June of
                           03 I believe it was.

      The Court:           Okay. So you were drinking again? Correct?

      The Defendant:       Yes, ma’am.

      The Court:           Okay. You didn’t say that before. You were talking
                           about not being able to get to where you needed and
                           transportation and your mom didn’t want the device but
                           you didn’t say anything about that you had started
                           drinking again.

      The Defendant:       I—I told the probation officer, ma’am.

      The Court:           Okay.

      The Defendant:       And then he—I believe he put it in the report.


                                             4
       At no time during the sentencing hearing did defense counsel object that the PSI

report did not contain a drug and alcohol treatment evaluation, nor did he request that the

evaluation be considered by the trial court prior to sentencing. The court assessed

punishment at six years’ confinement for the DWI offense and two years’ confinement for

the drug possession offense, to run concurrently.

       The judgment recites that a pre-sentence investigation report was conducted under

Texas Code of Criminal Procedure article 42.12, section 9. The actual report, however,

does not appear in the record. The trial court certified Arredondo’s right to appeal. This

appeal ensued.

                                      II. Discussion

       By a single issue, Arredondo complains that the trial court failed to order an alcohol

and drug evaluation or, alternatively, failed to consult the evaluation before sentencing.

The State counters that Arredondo waived his argument by failing to object to the contents

of the report and to the trial court’s failure to consider the report prior to sentencing.

Alternatively, the State argues that a PSI report was prepared, and the record shows that

the trial court considered the report, which adequately evaluated Arredondo’s eligibility for

treatment. Furthermore, the State argues that any error is harmless because, at the

sentencing hearing, the trial court heard and considered sufficient evidence to make an

informed decision regarding the sentence.

       Texas Code of Criminal Procedure article 42.12, section 9(h) provides:
       On a determination by the judge that alcohol or drug abuse may have
       contributed to the commission of the offense . . . . the judge shall direct a
       supervision officer approved by the community supervision and corrections
       department or the judge or a person, program, or other agency approved by
       the Texas Commission on Alcohol and Drug Abuse, to conduct an evaluation
       to determine the appropriateness of, and a course of conduct necessary for,
                                             5
        alcohol or drug rehabilitation for a defendant and to report that evaluation to
        the judge.

TEX . CODE CRIM . PROC . ANN . art. 42.12 § 9(h). The statute is mandatory, in that a trial court

is required to order a drug and alcohol evaluation once it determines that alcohol or drugs

contributed to the offense. Overton v. State, 815 S.W.2d 895, 898 (Tex. App.–Fort Worth

1991, no pet.). However, a defendant may waive any error regarding the preparation of

the report by failing to call deficiencies in the report to the trial court’s attention. See

Nguyen v. State, 222 S.W.3d 537, 542 (Tex. App.–Houston [14th Dist.] 2007, pet. ref’d)

(holding that party waives defects in PSI report by failing to point out deficiencies to the trial

court); Smith v. State, 91 S.W.3d 407, 410 (Tex. App.–Texarkana 2002, no pet.).

        Arredondo requested that the trial court direct preparation of a PSI report. Although

the PSI report does not appear in the record, the trial court’s judgment reflects that a PSI

report was prepared and that the trial court considered it prior to sentencing. Arredondo

argues on appeal that the record does not reflect that the report contained a drug and

alcohol evaluation. However, Arredondo did not object at trial that the PSI report was

deficient in this regard. Nor did he object that the trial court failed to consider the report

prior to sentencing. Accordingly, his complaint is waived. Nguyen, 222 S.W.3d at 542;

Smith, 91 S.W.3d at 410.2


        2
           Moreover, Arredondo did not request that the clerk include the PSI report in the appellate record.
See T EX . R. A PP . P. 34.5(b). W e note that although the report does not appear in the record, the punishm ent
hearing transcript indicates that the report included a drug and alcohol evaluation. The trial court specifically
asked the prosecutor whether Arredondo had been “screened” to determ ine his eligibility for drug and alcohol
treatm ent, and the prosecutor responded affirm atively. The prosecutor then adm itted that Arredondo qualified
for drug and alcohol treatm ent. Thus, Arredondo’s argum ent that no report was prepared and that drug and
alcohol treatm ent was not considered as an option is not supported by the record— the State adm itted the
results of the evaluation were favorable to Arredondo. Nevertheless, the trial court, after considering the
evidence and Arredondo’s adm ission that he had received treatm ent in the past and had returned to drinking,
decided not to release Arredondo on com m unity supervision with drug and alcohol treatm ent as a condition.
The trial court was entirely within its discretion to m ake such a ruling. Speth v. State, 9 S.W .3d 530, 533 (Tex.
                                                        6
                                               III. Conclusion

        Because Arredondo waived his sole issue on appeal, we affirm.




                                                                      GINA M. BENAVIDES,
                                                                      Justice

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

Memorandum Opinion delivered and
filed this the 21st day of August, 2008.




Crim . App. 1999) (“[C]om m unity supervision is a privilege, not a right.”).
                                                        7
