Opinion issued July 7, 2016




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                             NOS. 01-15-00781-CR &
                                   01-15-00782-CR
                            ———————————
             CHRISTOPHER NICHOLAS CAVAZOS, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 184th District Court
                            Harris County, Texas
                   Trial Court Case Nos. 1402280 & 1443325


                          MEMORANDUM OPINION

      Appellant was charged with intoxicated manslaughter1 and intoxicated

assault2 following a multi-car collision. He pleaded guilty without a sentencing

1
      trial court cause no. 1402280; appellant court cause no. 01-15-00781-CR
recommendation. In a single issue, he complains that the trial court erred by

sentencing him without requiring the Presentence Investigation Report (PSI) to

include a drug-and-alcohol evaluation and psychological evaluation. We affirm.

                      THE SENTENCING HEARING AND PSI

         Appellant requested a PSI be prepared before sentencing. At the beginning

of the sentencing hearing, the State offered the PSI into evidence, and appellant’s

counsel agreed, also stating that appellant had no “objections or corrections” to the

PSI. Several letters in support of appellant were also admitted into evidence.

A.       Sentencing Testimony

         At the hearing, two witnesses testified on behalf of the State. The first was

the daughter of the woman killed in the collision with appellant. She described the

impact her mother’s death had on the family, including the decedent’s children and

grandchildren. The decedent’s son also testified about the impact on the family’s

lives.

         Appellant presented four witnesses. The first was appellant’s step-father.

He testified that appellant was very sweet and caring growing up, but that he

struggled with depression that had gotten worse shortly before the September 22,

2013 automobile accident that led to appellant’s criminal charges. He explained

that appellant’s long-time girlfriend recently broke up with him, and that appellant


2
         trial court cause no. 1443325; appellant court cause no. 01-15-00782-CR
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was seeing a counselor and taking medication.          In his step-father’s opinion,

appellant was not trying to commit suicide when he caused the collision.

      Appellant’s step-father also stated that he attended counseling with appellant

and appellant’s mother after the accident and took classes over a two-month period

about mental health issues. Appellant’s step-father further testified that, before the

accident, appellant was somewhat self-absorbed with self-pity, but that now his

whole attitude had changed; he has been participating in bible study and talking

about helping others.     Appellant’s family also helped financially with burial

expenses for the decedent’s family.

      Appellant’s doctor also testified. He met appellant about six months after

the accident. He described appellant as depressed and full of guilt over the harm

his accident caused to several families. He had several sessions with appellant, and

understood him to have a history of depression and thoughts of self-harm since

high school.   He also evaluated appellant for an “alcoholism issue or alcohol or

drug abuse,” concluding that when appellant was under severe stress, he would

consume too much alcohol.

      Appellant’s mother testified that appellant was a caring child, always

looking out for other kids. He was highly intelligent, scoring at post-high school

levels on standardized tests when he was in elementary school. She explained that

he did not really start struggling with depression until high school. She echoed


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appellant’s step-father’s and doctor’s sentiment that appellant had matured greatly

since the accident, focusing on counseling and grieving for the deceased and

injured persons’ families. She sent a card to the deceased’s family expressing

remorse and helped with body transportation and burial expenses.

      Finally, appellant testified on his own behalf. He explained that, on the day

of the accident, it was his birthday and he had borrowed his ex-girlfriend’s car to

go to a friend’s house to celebrate with barbeque and some drinks. He left that

party because he was supposed to pick up his ex-girlfriend from work at 2:00 a.m.

because he still had her car. Appellant admitted that he was rushing because she

was pestering him to get to her place of work. He also claimed that it was not his

intention to flee the scene of the accident on foot; he was just going straight to his

ex-girlfriend’s place of employment, which was a block away, to pick her up and

let her know about the accident. He denied that he purposely caused the accident

in a suicide attempt, although he acknowledged telling a police officer that.

      Appellant testified that he still suffers from depression and feels a lot of grief

and remorse about what happened. He apologized to the families and prayed for

forgiveness.

        On cross-examination, appellant admitted to involvement in two prior

crashes, in 2009 and 2010, and that he had received numerous tickets since getting

his driver’s license. He testified that his license was suspended at the time of the


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crash leading to the underlying charges for intoxicated manslaughter and

intoxicated assault. In 2012, he was arrested for reckless driving for speeding and

running two red lights. He admitted that his bad driving in that previous case was

motivated by his being upset with his girlfriend, and it resulted in a year-long

pretrial intervention. During that time, he was supposed to do community service

and stay off of drugs and alcohol. He successfully completed that program in

August of 2013, a month before the current crash.

      Appellant claimed that he was not driving recklessly the night of the current

accident, despite witness claims that he was driving at least 80 m.p.h. in a 35

m.p.h. zone and that he ran through a red light and plowed into three cars, killing

one person and injuring others. He admitted that he did not check on the drivers of

the cars he hit after the accident, and he claimed that when he ran down the street

instead (causing him to be tackled by a police officer to stop him), he simply

wanted to reach his ex-girlfriend’s workplace to explain why he had not picked her

up. He claims to have explained that to a witness before he took off, but that the

witness might not have understood English.

      Appellant said that he was not thinking clearly after the accident, but that it

was not because he had consumed alcohol; it was because he had been injured in

the accident. He acknowledged that he did not break any bones, and that he was

released from the hospital’s care a few hours after the accident. He does not recall


                                         5
telling an officer at the scene, and then later another officer in a taped interview,

that he ran the red light because he was upset and wanted to kill himself. He thinks

maybe the comments were taken out of context because he was having suicidal

thoughts before and after the accident, but he was only rushing and ran a red light

before the accident because he did not want to be late picking up his ex-girlfriend.

      When asked about bonding out of jail while awaiting trial in this case, he

acknowledged that a condition of his bond was that he could not use any alcohol.

He stated that he did not start drinking again.       When asked about failing a

Breathalyzer while on bond in violation of that condition, he responded that he had

one drink. He was sent back to jail and bonded out again. He had his bond

revoked for failing to install and use a device in his home that administered breath

alcohol level tests. He claimed he was working and going through depression still.

He would sleep almost 20 hours, and he said he was having problems waking up in

the morning and blowing into the machine.         He did not perform any of his

community service hours.

B.    The PSI

      The PSI described the accident scene and investigation with information

taken from the officers and their accident reports. Two officers could smell a

strong odor of alcohol on appellant’s breath, and appellant had trouble walking and

keeping his balance.     One officers tried to perform a field sobriety test on


                                          6
appellant, but appellant refused. The PSI stated that “[t]he defendant reported [to

one officer] he knew the traffic light was red and he wanted to kill himself because

he was upset about his girlfriend breaking up with him.” Statements were taken

from drivers and passengers of the affected vehicles and from witnesses. They

consistently maintained that appellant was driving fast, ran a red light, and caused

several accidents, resulting in one death and one serious injury.

      Appellant’s later blood draws reflected blood alcohol levels of .081 and

.112. He had Naproxen (non-steroidal anti-inflammatory) and Remeron (anti-

depressant) in his system.       A retrograde alcohol extrapolation report was

introduced, reflecting appellant’s approximate BAC at the time of the accident to

be 0.157.

      The PSI also contains notes about interviews with appellant:

      In an interview with the defendant, he reported he will provide a
      statement about the offense through his attorney. A written statement
      was not provided. The defendant stated he is asking the Judge to
      place him on probation and send him to rehab (inpatient or
      outpatient). The defendant reported he is not the type of person to hurt
      anyone and still feels depressed over the offense. The defendant
      reported he really wants to be with his family, go to work and attend
      school. The defendant stated he also wants to help himself and help
      his family. The defendant said his mother wants to start an
      organization to help prevent drinking and driving and he also wants to
      help with this. The defendant stated he will comply with any condition
      of probation.
      The defendant reported he is asking the Judge to trust him on
      probation because he knows he will do a lot better. The defendant said
      he knows if he messes up, this will impact him and he does not want

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      to return to jail. The defendant said he also mailed a letter to the Court
      a couple of weeks prior to the PSI hearing about why he is asking the
      Judge to place him on probation. The defendant stated he also wrote a
      personal letter for the deceased complainant’s family and believes his
      lawyer has a copy.
      The PSI contained victim impact statements by the families of the people

injured and killed in the September 22, 2013 collision.          It also contained a

summary of appellant’s bond violations and his excuses for each.

      The PSI described appellant’s childhood and education. He mainly attended

magnet schools with programs for the gifted and talented. He was in a homeschool

program for part of high school because he was struggling with depression. Post-

high school, he attended Houston Community College.

      The following sections related to mental health and drug and alcohol use

were included in the PSI:

      Mental Health
      Per the Harris County Special Needs Response Form, the following is noted:
      Medications:
      2/13/2015 - 5/13/2015 Citalopram Hydrobromide Tab 20 MG
      2/11/2015 - 5/11/2015 Diphenhydramine HCI cap 25 MG
      Last known diagnosis:
      2/1112015 Axis1- MAJ DEP D/0, RECURR W /PSY FEAT
      3/30/2014Axis1- MAJ DEP. D/0 RECURR SEV W /0 PS
      Current Mental Health Treatment
             The defendant reported he does not meet with anyone from
      MHMRA in jail and only receives his medication. The defendant
      stated the medication is helping and he can benefit from continued
      mental health treatment.

                                          8
Prior Mental Health Treatment
        The defendant said he first went to see a therapist when he was
in high school. The defendant stated he was sleeping a lot and he did
not want to get up nor did he want to go anywhere. The defendant
reported he also did not want to speak to anyone. The defendant said it
was initially believed he was on drugs, but a drug test proved he was
not. The defendant stated he was diagnosed with depression at the age
of eighteen. The defendant stated he was diagnosed with anxiety in
2012 after having a bad anxiety attack after arguing with his ex-
girlfriend. The defendant reported he was not able to breathe, his arms
went numb and he felt as if he was going to die. The defendant said
because of these symptoms, he was taken to the doctor. The defendant
stated he feels anxious after an argument or when he feels he is
backed into a corner and attacked. The defendant reported his last
anxiety attack occurred in August 2013 after an argument with his ex-
girlfriend.
      The defendant stated he has seen various therapists over the
years off and on when he would be in his depression. The defendant
reported when he felt normal, he would stop seeing the therapist and
stop taking his medication. The defendant said he would become
depressed again if something happened in his life. The defendant
stated he was prescribed Wellbutrin after he bonded out for the
current offenses the first time and used the medication for a while.
The defendant reported when he felt better, he stopped. The defendant
said prior to his most recent arrest in February 2015, he last used his
medication at the beginning of 2014. The defendant stated when not
taking his medication, he exercised, talked to friends and tried to go
out more. The defendant reported he will not have any problems
taking his medication if he is on probation.
Prior Hospitalizations
      The defendant stated his first hospitalization was at the age of
twenty. The defendant said he was taken somewhere in Ben Taub
Hospital after he had an outburst at home. The defendant said he
began throwing things and scared his mother. The defendant stated he
did not threaten his mother, but she called the police because she was
worried about his safety. The defendant stated he stayed in the
hospital for a couple of days.


                                  9
      The defendant reported his second hospitalization was around
the age of twenty-one or twenty-two. The defendant stated he was
taken to Harris County Psychiatric Center (HCPC) after a fight with
his ex-girlfriend, Angelina Cazares. The defendant said he was
depressed and told his girlfriend over the phone he wanted to kill
himself. The defendant reported he cried and felt like giving up. The
defendant stated his exgirlfriend became worried and called the
police. The defendant said he spent a week in the hospital.
      The defendant said his third hospitalization was at the age of
twenty three. The defendant reported he was sent to St. Joseph’s
hospital overnight because he felt depressed and felt as if he did not
want to live.
Suicide Attempts/Thoughts
      The defendant reported he has never attempted suicide. The
defendant was specifically asked if the offense was a suicide attempt
based on the police report and the defendant said it was not. The
defendant reported he has had suicidal thoughts in the past. The
defendant said his last suicidal thought was one to two months prior to
the current offenses.
        The defendant reported during this time, he was going through
a lot with his ex-girlfriend after she lied to him and began dating
someone else. The defendant denied having any suicidal thoughts
since. The defendant said since his ex-girlfriend is no longer in his
life, things are a lot better.
      When asked a series of mental health related questions, the
defendant reported the following: The defendant stated there has been
some hitting of walls when asked about self-harming behavior. The
defendant denied hurting anyone or lashing out in anger. The
defendant said he had trouble sleeping prior to coming to jail and
reported his appetite was off and on prior to coming to jail. The
defendant stated he does find himself feeling hopeless or isolating
himself from others. The defendant denied suffering from mood
swings. The defendant said he does not really believe people are out
to get him and he does trust people in authoritative positions. The
defendant also denied having visual or auditory hallucinations. When
discussing a family history of mental health and in addition to his
mother having depression and his father having PTSD, the defendant


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      stated his maternal grandmother and cousin also suffer from
      depression.
      Alcohol/Drug Usage
             Alcohol: The defendant stated his first alcohol use was at the
      age of twenty-one with friends. The defendant said the friends he was
      with were good people, but he chooses not associate with them
      anymore. The defendant reported between twenty-one and twenty-
      four, he consumed alcohol once or twice a month when getting
      together with friends. The defendant reported during those times, he
      would drink six to eight drinks. The defendant said his alcohol use
      remained once or twice a month until the offense. With the exception
      of him drinking alcohol alone while on bond in 2014, the defendant
      said his last alcohol use was the night of the offense, of which he
      stated he consumed five to six beers (regular can size) and a couple of
      shots of vodka.
             The defendant stated there were times he felt he needed a drink
      of alcohol when he was stressed, but he would not go out and drink.
            Drugs: The defendant denied ever using drugs.
             Treatment: The defendant reported he has never received
      substance abuse treatment. The defendant said he does not currently
      believe he needs help for an alcohol problem, but he is willing to get
      the help because he does not want it to become a problem in the
      future.
C.    The Sentencing

      The court addressed appellant’s drinking and history of depressing during

the sentencing hearing:

            Let me talk to you just a moment. Anyone with your mental
      health issues cannot drink. You cannot drink. Anyone with depressive
      disorder.
             And you may -- other mental health issues, as well, you cannot
      drink. Alcohol is a depressant. And you’re one of those people who
      does stupid things when he drinks.
             There is also a high correlation between being intoxicated and
      also feeling shamed and committing suicide. And so, you are going to

                                        11
      hurt someone again; or you’re going to hurt yourself. And I think one
      of the things that was so upsetting to me when I read this report was
      that you said you would go through alcohol gotten into two [sic] when
      I -- if I ordered it, but you didn’t really think you needed it. And if on
      the pretrial diversion you would have been honest about your
      drinking, maybe you would have had some gotten into two [sic]
      ordered and maybe we wouldn’t be here today.
             I’m just telling you when you get out, if you’re paroled, you
      cannot drink. You cannot drink. And you have to admit you got a
      problem or you’re going to be back in the system again and there is
      going to be another tragedy. So, you’re a smart guy with a lot of
      talent. I hope you take some college courses while you’re in prison. I
      hope this time isn’t wasted for you.
      In the intoxication assault case, the court found the deadly weapon

paragraph true, and sentenced appellant to nine years’ confinement.            In the

intoxication manslaughter case, the court found the deadly weapon paragraph true

and sentenced appellant to sixteen years’ confinement.

                               ISSUE ON APPEAL

      In a single issue, appellant argues:

      “The trial court erred by sentencing Appellant when the Presentence
      Investigation Report failed to include a drug and alcohol evaluation
      and psychological evaluation as statutorily mandated by Tex. Code
      Crim. Proc. art. 42.12 §9(h) and (i).”

                               APPLICABLE LAW

      Article 42.12 provides, in relevant part:

      Presentence Investigations

      Sec. 9. (a) Except as provided by Subsection (g), before the
      imposition of sentence by a judge in a felony case, . . . the judge shall
      direct a supervision officer to report to the judge in writing on the

                                             12
circumstances of the offense with which the defendant is charged, the
amount of restitution necessary to adequately compensate a victim of
the offense, the criminal and social history of the defendant, and any
other information relating to the defendant or the offense requested by
the judge. It is not necessary that the report contain a sentencing
recommendation, but the report must contain a proposed client
supervision plan describing programs and sanctions that the
community supervision and corrections department would provide the
defendant if the judge suspended the imposition of the sentence or
granted deferred adjudication . . . .
....
(h) 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, alcohol or
drug rehabilitation for a defendant and to report that evaluation to the
judge. The evaluation shall be made:
       (1) after arrest and before conviction, if requested by the
       defendant;
       (2) after conviction and before sentencing, if the judge assesses
       punishment in the case;
       (3) after sentencing and before the entry of a final judgment, if
       the jury assesses punishment in the case; or
       (4) after community supervision is granted, if the evaluation is
       required as a condition of community supervision under Section
       13 of this article.
(i) 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.


                                   13
TEX. CODE CRIM. PROC. ANN. art. 42.12 §9(h)–(i) (West 2015).

                                    ANALYSIS

      Appellant argues that the PSI report in this case did not contain the drug and

alcohol evaluation or a psychological evaluation as required under article 42.12 §

9. Appellant acknowledges that his counsel did not object to the lack of either

evaluation in the PSI report, and that several courts, including this one, have held

that such a complaint is waived if not made in the trial court. He urges us to rely,

however, on a 1991 San Antonio Court of Appeals case holding that the

psychological evaluation requirement cannot be waived if the trial court has

evidence of mental impairment before it. See Garrett v. State, 818 S.W.2d 227,

229 (Tex. App.—San Antonio 1991, no pet.).         Because appellant’s counsel has

“found no Court of Criminal Appeals case overruling Garrett,” appellant argues

that “[t]his Court should follow the holding of Garrett and extend it to drug and

alcohol evaluations under §9(h).”

      The State’s response is threefold. First, it contends appellant’s sole appellate

argument is waived because appellant’s counsel endorsed admission of the

allegedly defective PSI by affirmatively representing to the trial court that he had

“no objections or corrections” when it was offered by the State. The State points

out that the right to a PSI generally is forfeited when a party fails to request a PSI

if one was not prepared. See Summers v. State, 942 S.W.2d 695, 696–97 (Tex.


                                         14
App.—Houston [14th Dist.] 1997, no pet.); Holloman v. State, 942 S.W.2d 773,

776 (Tex. App.—Beaumont 1997, no pet.); Wright v. State, 873 S.W.2d 77, 83

(Tex. App.—Dallas 1994, pet. ref’d). In addition, the State contends that the cases

uniformly holding that “a defendant who failed to object at trial waived the right to

complain on appeal that an alcohol evaluation or a psychological evaluation was

not included in a PSI” were all decided after Garrett, the case upon which

appellant urges us to rely. Nguyen v. State, 222 S.W.3d 537, 542 (Tex. App.—

Houston [14th Dist.] 2007, pet. ref’d); see also Alberto v. State, 100 S.W.3d 528,

529 (Tex. App.—Texarkana 2003, no pet.); Schmidt v. State, No. 14–97–00945–

CR, 1999 WL 394816, at *1 (Tex. App.—Houston [14th Dist.] June 17, 1999, no

pet.) (not designated for publication); Ladet v. State, No. 01–96–00887, 1998 WL

23095, at *1 (Tex. App.—Houston [1st Dist.] Jan. 8, 1998, no pet.) (not designated

for publication).

      Second, the State argues that appellant’s point of error should be overruled

because, to trigger the requirement that the court order a drug and alcohol

treatment assessment as part of the PSI, there is a threshold requirement that the

court make a judicial determination that “the offenses were caused by drug abuse,

not mere alcohol or drug use.” According to the State, there is no such judicial

finding here.




                                         15
      Lastly, the State argues that appellant was not harmed by the lack of an

alcohol evaluation or a psychological evaluation in the PSI. Specifically, the State

emphasizes that “while the PSI report might not have included an alcohol

evaluation or a psychological evaluation to the appellant’s desires, it did include

plenty of information on those issues as a resource for sentencing.”

      We agree with the State that appellant cannot show that he was harmed

because the court had ample evidence before it about appellant’s alcohol abuse and

mental illness in the PSI report and through testimony at the sentencing hearing.

       The PSI included appellant’s full mental health history, as reported by

appellant and appellant’s family.    The report also included information about

appellant’s diagnoses of depression and summaries of his hospitalizations. While

the PSI did not include appellant’s IQ or adaptive behavior score, the court heard

testimony that appellant was in gifted programs at school, tested well

academically, and attended Houston Community College. In other words, there

was no indication that a low IQ was a contributing factor in the commission of

appellant’s offenses. The PSI listed options for psychological and psychiatric

evaluation, counseling, and treatment as part of appellant’s sentence. Finally, both

the appellant and appellant’s treating physician provided testimony at the

sentencing hearing chronicling appellant’s history of depression and his current

treatment.


                                         16
      There was also information in the PSI report and in testimony at the

sentencing hearing about appellant’s alcohol and drug use history. The PSI listed

possible options for alcohol dependency evaluation, testing, and treatment as part

of appellant’s sentence. Appellant denied using drugs, and stated that he drank

alcohol once or twice a month. Appellant denied needing any help with substance

abuse or alcohol dependency. Appellant’s doctor, on the other hand, testified that

appellant has a history of drinking alcohol excessively when he is stressed. The

court took the combination of alcohol abuse and depressive illness into

consideration in sentencing, counseling appellant that he should have been honest

after his last case about his alcohol problems and admonishing him if he is paroled

that he consider the impact alcohol consumption has on his life.

      In sum, although the PSI report did not include drug, alcohol, and

psychological evaluations in the form mandated by article 42.12, appellant’s

counsel stated he had no objection or corrections to the PSI, and the court had

before it psychological and alcohol use information about appellant for use in

formulating a sentence. Appellant cannot demonstrate harm. TEX. R. APP. P.

44.2(b).

      We overrule appellant’s sole point of error.




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                                    CONCLUSION

      We affirm the trial court’s judgments.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

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




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