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

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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.
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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).




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