                                     NO. 07-04-0587-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                          PANEL A

                                  SEPTEMBER 26, 2005
                            ______________________________

                             BILLY JOE ELMORE, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE
                          _________________________________

               FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                  NO. 11,574-C; HONORABLE PATRICK PIRTLE, JUDGE
                          _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                                 MEMORANDUM OPINION


          Appellant, Billy Joe Elmore, appeals the sentence imposed following his conviction

for aggravated assault.       Appellant was sentenced by the trial court to ten years

incarceration in the Institutional Division of the Texas Department of Criminal Justice. We

affirm.


          In 1998, appellant pled guilty to the offense of aggravated assault. In accordance

with a plea bargain agreement, the trial judge accepted appellant’s plea, deferred

adjudication of guilt, placed appellant on ten years deferred adjudication probation and
assessed a $10,000 fine. Appellant did not appeal from this proceeding or the order

placing him on deferred adjudication probation.


       In 2004, the State filed an Amended Motion to Revoke Order Granting

Unadjudicated Probation alleging that appellant had violated terms and conditions of his

probation.


       Appellant timely filed notice of his insanity defense and moved the court for a

psychiatric evaluation. The trial court granted appellant’s motion. The trial court also

ordered appellant be evaluated by Texas Panhandle Mental Health and Mental Retardation

(TPMHMR) to determine if TPMHMR had any services that it could offer appellant.


       At the hearing on the Motion to Revoke, appellant pled not true to the violations by

reason of insanity. By agreement of the parties, this hearing was made a unitary hearing

in which evidence would be considered as relevant to both the trial court’s determination

of whether to proceed to adjudication and, if so, the appropriate punishment.


       Steve Brasher, a licenced professional counselor with TPMHMR, testified regarding

a diagnostic impression that he performed on appellant. Before Brasher testified that

appellant did not exhibit enough symptoms to qualify for a diagnosis of major depression,

bipolar disorder or schizophrenia, appellant objected contending that no reliable foundation

had been laid to establish that Brasher’s opinion was a reliable opinion. The trial court

overruled appellant’s objection. Following the court’s ruling, Brasher testified as to the

symptoms appellant exhibited during Brasher’s evaluation, why those symptoms failed to

correlate to diagnoses of major depression and bipolar disorder, and that appellant’s

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symptoms indicated a personality disorder rather than a mental condition. Appellant did

not object to any of this testimony. However, when the State inquired about a second

evaluation that Brasher performed on appellant, appellant objected stating that Brasher’s

opinion was speculative and not based on a reliable foundation. Again, the trial court

overruled appellant’s objection. Brasher further testified that appellant did not qualify for

TPMHMR services.


       The psychologist appointed by the trial court, Dr. Stephen Schneider, testified that

he did not believe that appellant had the ability to know right from wrong at the time of the

commission of the aggravated assault if he was not on the appropriate medication at the

time of that offense. Schneider also explained that Brasher’s conclusions were the result

of only a cursory examination and that it lacked objectivity because Brasher did not utilize

any testing. Schneider opined that appellant suffers from a post-traumatic stress disorder

that is accompanied by a major depressive disorder that is recurrent and severe.


       At the close of the unitary hearing, the trial court found three of the alleged violations

to be true and adjudicated appellant guilty of the offense of aggravated assault. The court

then sentenced appellant to ten years incarceration. Appellant made no request for the trial

court to order a presentence investigation (PSI).


       By two issues, appellant appeals. Appellant contends that the trial court erred in (1)

considering Brasher’s expert opinion statement and testimony, and (2) sentencing appellant

without a PSI. Appellant concedes that this court has no jurisdiction to review the trial

court’s determination to proceed to adjudication of guilt in this action, see TEX . CODE CRIM .


                                               3
PROC . ANN . art. 42.12, § 5(b) (Vernon Supp. 2004)1, and specifies that these issues pertain

only to the trial court’s sentencing.


       By his first issue, appellant contends that the trial court erred in considering

Brasher’s out-of-court statement2 and in admitting his expert testimony.


       A trial court’s decision to admit or exclude evidence is reviewed for abuse of

discretion.   See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000);

Montgomery v. State, 810 S.W.2d. 372, 390 (Tex.Crim.App. 1990) (op. on reh’g).

However, to preserve error for appellate review, the complaining party must make a timely

and specific objection at the earliest possible opportunity. See TEX . R. APP . P. 33.1;

Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Crim.App. 1985) (op. on reh’g). An

appropriately specific objection regarding expert testimony must specify the particular

deficiency in the expert’s qualifications or the reliability of the expert’s opinions. See



       1
       Further reference to provisions of the Texas Code of Criminal Procedure will be by
reference to “article __.”
       2
        The only reference to an out-of-court statement made by Brasher to the trial court
which can be found in the record is in a letter that the trial court sent appellant’s trial
counsel in which the trial court indicated that Brasher had advised the court that TPMHMR
could not offer any services to appellant because, in Brasher’s opinion, appellant “was a
sociopath who intentionally manipulated the system and that the interests of society would
best be served by his incarceration.” However, the record does not show that appellant
preserved this error, if any, by objecting to the trial court’s consideration of Brasher’s out-of-
court statement. See TEX . R. APP . P. 33.1(a). Further, appellant’s brief cites no authority
to support his contention that the trial court erred in considering this statement and provides
no substantive argument as to how appellant was harmed by the trial court’s action. Failure
to adequately brief an argument and provide authority to support an issue waives the
complaint. See Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App. 1995). Therefore,
we will limit our review of appellant’s first issue to his contention that the trial court erred
in admitting Brasher’s expert testimony.

                                                4
Chisum v. State, 988 S.W.2d 244, 250 (Tex.App.–Texarkana 1998, pet. ref’d). A general

objection that does not specify the particular deficiency of the testimony does not

adequately inform the trial court of a complaint upon which it might rule and, thus, does not

preserve error in the admission of such expert testimony. Id.


       Appellant’s sole objection to Brasher’s qualifications and the reliability of his expert

opinion testimony was that there was “no reliable foundation” laid for Brasher’s opinions.

Appellant did not specify in what manner Brasher’s expert testimony was deficient. See

Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992) (indicating that for expert

testimony to be reliable the underlying scientific theory must be valid, the technique

applying the theory must be valid, and the technique must have been properly applied on

the occasion in question).    Thus, we conclude that appellant’s “no reliable foundation”

objection was too general to advise the trial court of any specific deficiency in Brasher’s

testimony and did not preserve any error in the trial court’s admission of this testimony.

See Chisolm, 988 S.W.2d at 250.


       Further, appellant failed to preserve any error in the admission of Brasher’s opinion

testimony by not repeatedly objecting to the same or similar testimony. Without a hearing

outside of the presence of the jury, a request for a running objection, or repeated

objections, any error in the admission of testimony over a proper objection is not preserved

when the same or similar testimony is admitted through the same witness without objection.

See Ethington v. State, 819 S.W.2d 854, 859-60 (Tex.Crim.App. 1991). In the present

case, appellant objected when Brasher offered his opinion that appellant did not exhibit

enough symptoms for a diagnosis of a mental condition. However, following this objection,

                                              5
Brasher testified that appellant did not exhibit enough symptoms to qualify for a diagnosis

of major depression or bipolar disorder and that the symptoms that he did exhibit would

indicate a personality disorder rather than mental impairment. Appellant did not object to

this subsequent testimony. Because we conclude that this subsequent testimony was the

same or similar to the testimony that appellant did object to, appellant’s failure to repeatedly

object to this evidence failed to preserve any error arising from the trial court overruling

appellant’s initial objection. See TEX . R. APP . P. 33.1; Ethington, 819 S.W.2d at 859-60.

We overrule appellant’s first issue.


       By his second issue, appellant contends that the trial court erred by sentencing him

without first ordering a PSI.     Article 42.12, section 9(a) indicates that, with certain

exceptions, before the imposition of sentence in a felony case, the trial court shall direct a

supervision officer to report to the judge in writing on the 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 requested by the judge. However, a trial court is not required to order

a PSI if not requested by the defendant and if the only available punishment is

imprisonment. See article 42.12, § 9(g)(3). If a defendant is convicted of a felony who

appears to the trial court, or on suggestion of a party, to have a mental impairment, any PSI

ordered shall include a psychological evaluation. See article 42.12, § 9(i).


       In the present case, appellant never requested the trial court order a PSI, so the

mandatory duty arising upon such a request was not triggered by appellant. Appellant, in

his judicial confession, admitted that he had committed each and every allegation contained

                                               6
in the indictment. The indictment alleged that appellant committed aggravated assault

while using and exhibiting a motor vehicle as a deadly weapon. The trial court’s judgment

finds appellant guilty of aggravated assault and includes an affirmative finding that he used

or exhibited a deadly weapon. The trial court’s adjudication of appellant’s guilt and

affirmative finding that appellant used or exhibited a deadly weapon precluded imposition

of community supervision. See article 42.12, § 3g(a)(2); Whitelaw v. State, 29 S.W.3d 129,

132 n.13 (Tex.Crim.App. 2000). Thus, the only punishment available to the trial court was

imprisonment. We, therefore, conclude that the trial court’s sentencing of appellant without

first requesting a PSI falls squarely within the statutory exception contained in article 42.12,

section 9(g)(3) and did not constitute error.


       Appellant relies upon Garrett v. State, 818 S.W.2d 227, 229 (Tex.App.–San Antonio

1991, no writ), for the proposition that a PSI is mandatory in a felony case in which it

appears to the trial court or a party suggests that the defendant may have a mental

impairment. However, Garrett involved a case under the prior version of article 42.12,

section 9(i). Section 9(i)3, as it existed at the time Garrett was decided, required that a PSI

be conducted and that the PSI include a psychological evaluation when the defendant may

have a mental impairment.            See Holloman v. State, 942 S.W.2d 773, 776

(Tex.App.–Beaumont 1997, no writ). The current version of section 9(i) now requires that,

if a trial court is otherwise required to order a PSI or does so in its own discretion, then the

PSI must contain a psychological evaluation of the defendant if the defendant appears to


       3
       Act of June 15, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3498,
3503, amended by Act of August 29, 1991, 72nd Leg., 2d C.S., ch. 10, § 16.01, 1991 Tex.
Gen. Laws 213.

                                                7
have a mental impairment. Id. The most significant change made to the section by the

1991 amendment is the removal of the language indicating that a PSI “shall be conducted”

when a felony offender appears to suffer from a mental impairment. Id. As section 9(i) has

been amended to remove the language mandating the preparation of a PSI, we conclude

that Garrett is inapposite.


       As appellant has failed to establish that the trial court had a duty to order a PSI

before sentencing appellant, we overrule appellant’s second issue.


       We affirm the judgment of the trial court.




                                          Mackey K. Hancock
                                              Justice


Do not publish.




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