Affirmed as Modified and Memorandum Opinion filed December 5, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00767-CR

                 WILLIAM EDWARD ERICKSON, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1286119

                 MEMORANDUM                      OPINION


      Appellant William Edward Erickson pleaded guilty to murder, and the trial
court assessed punishment at confinement for life in prison. In three issues,
appellant challenges his conviction on the grounds that (1) the trial court erred in
sentencing him in the absence of a complete presentence investigation report (PSI);
(2) the trial court predetermined his life sentence rendering his guilty plea
involuntary; and (3) the court costs reflected in the judgment are not supported by
sufficient evidence. We sustain appellant’s third issue. Finding no reversible error
in his remaining issues, we modify the trial court’s judgment to delete the specific
amount of court costs and affirm the judgment as modified.

                                  I. BACKGROUND

      Appellant entered a plea of guilty to murder. The trial court deferred
entering a finding of guilt and ordered preparation of a PSI.

      According to the PSI, on November 20, 2010, appellant and others went to a
motel room where the complainant was administering tattoos. Several witnesses
related that appellant and the complainant argued over the price of the tattoo at
which time appellant shot the complainant between two and four times killing him.
According to appellant, the disagreement with the complainant stemmed from the
price of Xanax pills, not the tattoo. At the time of this offense, appellant was on
deferred adjudication probation for evading arrest and attempted aggravated
assault. The evading arrest charge arose from an attempted traffic stop in which
appellant fled because he had an outstanding arrest warrant for criminal mischief.
Appellant admitted that on the night of the offense he had been drinking beer,
taking pills, and using “crystal meth.”

      The PSI lists appellant’s prior criminal record dating back to 1997.
Appellant’s record reflects convictions for driving while intoxicated, theft of a
firearm, possession of marijuana, evading arrest with a motor vehicle, burglary of a
motor vehicle, assault causing bodily injury, and criminal mischief.

      In a section entitled, “Mental health,” the PSI reports that appellant was
evaluated while incarcerated in the Harris County Jail and was diagnosed with
Attention Deficit Hyperactivity Disorder (ADHD), Bipolar Disorder, and Panic
Disorder with Agoraphobia. Appellant reported that he had been previously


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prescribed Risperdal and Trileptal, but was currently not taking any medications.

      In a section entitled, “Alcohol/Drug Usage,” the PSI reported that appellant
reported drinking alcohol and using marijuana since he was fifteen years old, but
stopped using marijuana when he was twenty-eight years old. He began using
cocaine at the age of sixteen and has never stopped using it. Appellant began using
methamphetamines when he was twenty-four years old and admitted to using
methamphetamines the night of the offense. Appellant began using LSD at the age
of sixteen, but stopped when he was twenty years old. At the age of twenty-one,
appellant began using Ecstasy, but stopped when he was twenty-nine. Appellant
stated he began using Xanax when he was twenty years old, but stopped in 2010, at
the age of thirty. Appellant attended an inpatient treatment program in 1997 for
drug addiction, but left due to “financial problems.” Appellant reported attending
twelve-step meetings while in the Harris County Jail.

      Under “Sentencing Options” the report stated:

      Due to the nature of the charges currently pending against the
      defendant and the subsequent cases pending in Polk County, Texas,
      the defendant is not considered appropriate for supervision either in
      the community or within a community based program. Accordingly,
      this section has been omitted.

      At the PSI hearing, the complainant’s parents and sister testified to the
impact of the complainant’s death on their lives. Stephen Wyatt testified that
appellant and a friend attempted to steal his truck outside of a convenience store in
Polk County. When Wyatt tried to stop them, appellant drove the truck into the
convenience store hitting Wyatt and breaking his leg. Deputy Vance Berry of the
Polk County Sheriff’s Department testified that appellant was arrested after the
incident in Polk County. After hearing closing arguments the trial court sentenced
appellant to life in prison.

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                                   II. ANALYSIS

      A. PSI Report

      In his first issue appellant contends the trial court erred in sentencing him in
the absence of statutorily required information in the PSI. Specifically, appellant
challenges the absence of (1) a proposed client supervision plan, (2) a drug and
alcohol evaluation, and (3) a psychological evaluation. Article 42.12 section 9 of
the Texas Code of Criminal Procedure provides in part:

      (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
      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.
                                        ***
      (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
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      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.

      On appeal, appellant complains of the absence of the above-listed
information, but failed to object to its absence in the trial court. At the beginning of
the PSI hearing, the trial court asked defense counsel if he had any objections to
the PSI report as written. Counsel responded,

      Yes, Your Honor. On page 14, basically the complaining witness’
      mother is interviewed for the PSI. And Joe and I have agreed to redact
      the first two paragraphs on page 14. That’s the paragraph starting
      with: Ms. Ainsworth, and then both of them, two paragraphs. One is
      the longer one. The second one is only two lines long. And other than
      that, Your Honor, we’re okay with it.

Appellant did not request any additional information for the PSI, nor did he object
to the absence of additional information.

      The right to a PSI may be forfeited by a failure to object. Griffith v. State,
166 S.W.3d 261, 263 (Tex. Crim. App. 2005); see also Summers v. State, 942
S.W.2d 695, 696–97 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Likewise,
the right to a community supervision plan, a drug and alcohol evaluation, and a
psychological evaluation as a part of a PSI may be forfeited by a failure to object.
See Griffith, 166 S.W.3d at 265 (“the plain meaning of the language of Section 9,
when read in the context of the entirety of Article 42.12, does not require that the
trial court have a report prepared” when the defendant waives preparation of a
PSI”); Torres v. State, 391 S.W.3d 179, 182 (Tex. App.—Houston [1st Dist.] 2012,
pet. ref’d) (recognizing that article 42.12 does not state whether trial court is
required to order drug and alcohol evaluation sua sponte, but holding that error was
waived because the contention made on appeal was not made in the trial court);
Welch v. State, 335 S.W.3d 376, 382 (Tex. App.—Houston [14th Dist.] 2011, pet.
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ref’d) (holding that “the right to a psychological evaluation may be forfeited, just
as the right to a presentence investigation generally”). Because appellant did not
raise these objections in the trial court he did not preserve error for review.

       Appellant argues that he had a constitutional right to present mitigating
evidence pursuant to Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 2467
(2012), and that by failing to follow the statutory mandates, the trial court violated
his right to due process under the United States and Texas Constitutions. Following
a line of cases recognizing that juveniles may have less “moral culpability”
because of their youth, the Supreme Court in Miller held that mandatory life
imprisonment without parole for those under the age of eighteen at the time of their
crimes violates the Eighth Amendment’s prohibition against cruel and unusual
punishment. Miller, 132 S.Ct. at 2460. The Court required that sentencers “take
into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” Id. Appellant, an adult at the
time of the offense, has not cited authority, nor have we found any, extending the
Court’s holding to sentences of life in prison with the possibility of parole for adult
offenders. Moreover, appellant failed to preserve this issue for review by failing to
raise this objection in the trial court. See Tex. R. App. P. 33.1. We overrule
appellant’s first issue.

       B. Predetermined Sentence

       In his second issue, appellant contends the trial court improperly
predetermined appellant’s life sentence. Appellant argues that a notation on the
plea papers reflects the trial court’s predetermination. On the second page of
appellant’s “Plea of Guilty” there is a paragraph, which states, “I intend to enter a
plea of guilty and the prosecutor will recommend that my punishment should be set
at _________.” Handwritten in the blank is the notation, “Without Agreed

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Recommendation — PSI.” Also handwritten in the blank is the notation, “Life
Sentence RR.”1




Appellant contends that the trial court made the notation concerning the life
sentence at the time he signed the plea papers, thus predetermining appellant’s
sentence before reviewing the PSI or hearing evidence. Because appellant failed to
object to his life sentence, he has waived error.

      A court denies due process of law and due course of law when it arbitrarily
refuses to consider the full range of punishment for an offense or refuses to
consider the evidence and imposes a predetermined sentence. Ex parte Brown, 158
S.W.3d 449, 454 (Tex. Crim. App. 2005); Teixeira v. State, 89 S.W.3d 190, 192
(Tex. App.—Texarkana 2002, pet. ref’d). Due process guarantees a defendant the
right to a hearing before a “neutral and detached hearing body.” Brown, 158
S.W.3d at 454 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)). The
defendant can waive complaints of due process violations, however, by failing to
object in the trial court to the court’s failure to consider the full range of
punishment or consider certain evidence. Eddie v. State, 100 S.W.3d 437, 441
(Tex. App.—Texarkana 2003, pet. ref’d); Washington v. State, 71 S.W.3d 498,
499–500 (Tex. App.—Tyler 2002, no pet.).


      1
          The trial judge in this case was the Honorable Randy Roll.

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        In this case, appellant made no objection at the time of his sentencing.
Because appellant failed to object at the time the trial court sentenced him, he
waived any complaint on appeal. See Teixeria, 89 S.W.3d at 192 (holding that
appellant failed to preserve complaint that trial court arbitrarily refused to consider
entire range of punishment because he failed to make timely objection).

        Moreover, there is no evidence in the record indicating when this notation
was made or for what purpose. The court’s docket sheet reflects that on April 30,
2012:

        Defendant ERICKSON, WILLIAM EDWARD appeared in person
        with Counsel GONZALEZ, RICARDO N. AARON BURDETTE
        appeared for the State.
        Judge Presiding: ROLL, RANDOLPH EARL
        Defendant waived indictment; Felony Information filed. Defendant
        waived arraignment and entered a plea of GUILTY.
        Defendant, appearing to the Court to be sane, is admonished by the
        Court of the consequences of said plea.
        Penalty recommendation of the State is: WITHOUT AGREED
        RECOMMENDATION—PSI HEARING.

The docket sheet further reflects, on August 22, 2012:

        August 22, 2012 (Wed)
        Defendant: William Edward Erickson
        With counsel: Ricardo Gonzalez
        For State: Joseph Allard
        Court reporter, Myrna Hargis
        Judge Presiding: Randy Roll
        At 11:30 am PSI hearing came to be heard. All parties present.
        Witnesses were sworn. Both sides presented its evidence. At 12:30 pm
        Court sentenced defendant to LIFE in prison.
        Notice of Appeal was filed at this time.

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      Appeal bond set at No Bond

      The record reflects that the court accepted appellant’s guilty plea without an
agreed recommendation on April 30, 2012. Almost four months later, on August
22, 2012, after holding a PSI hearing, the court sentenced appellant to life in
prison. The record reflects that the trial judge’s initials are “R.R.” and at some time
the notation, “Life Sentence R.R.” was written on appellant’s plea papers. The
record does not reflect, as appellant suggests, that the trial court made this notation
“when he signed off on the plea papers — after it had left the hands of the
defense.” We will not accept as fact assertions made in appellant’s brief that are
not supported by the record. See Gelabert v. State, 712 S.W.2d 813, 816 (Tex.
App.—Houston [1st Dist.] 1986, pet. ref’d).

      By failing to object to his sentence, appellant failed to preserve error. Even if
appellant preserved error, he has not shown that the handwritten notation evidences
a predetermination of appellant’s sentence. We overrule appellant’s second issue.

      C. Court Costs

      In his third issue appellant contends there is insufficient evidence to support
$339 in court costs assessed against him in the judgment. In its judgment, the trial
court ordered appellant to pay $339 in court costs. Appellant requested the district
clerk to include the bill of costs in the appellate record. The clerk’s record does not
contain a bill of costs. In Johnson v. State, 389 S.W.3d 513, 517 (Tex. App.—
Houston [14th Dist.] 2012, pet. granted), this court held that if the record does not
support the assessment of a certain dollar amount in costs, the trial court errs in
entering a specific dollar amount in its judgment.

      The State argues that there are numerous provisions in the Texas Code of
Criminal Procedure authorizing various court costs to be paid by a defendant when
convicted of a felony offense. The State suggests several specific articles of the
                                          9
Code of Criminal Procedure and three sections of the Local Government Code
providing for fees that, if assessed against appellant, would add up to an amount of
at least $339.2 Therefore, the State maintains, the evidence is sufficient to support
the $339 in court costs reflected in the judgment.

       We have previously rejected this argument. In Rogers v. State, 402 S.W.3d
410, 420 (Tex. App.—Houston [14th Dist.] 2013, pet. filed), we held that to affirm
the judgment for costs merely because a number of statutes authorize certain costs
or fees that could have been assessed against the defendant—without regard to
whether they were actually assessed—would be speculative. Moreover, without
any indication in the record which specific fees or costs were actually assessed, a
defendant has no way to challenge their correctness on appeal or as provided under
article 103.008 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art.
103.008 (authorizing defendant to file a motion within one year after the date of
the final disposition of a case in which costs were imposed to correct any error in
the costs). Id.

       The trial court did not err in ordering appellant to pay court costs, as such
costs are mandated by law, but the court did err in entering a specific dollar
amount without any support in the record for that dollar amount. See Johnson, 389
S.W.3d at 516. Because there is no evidence in the record to support the trial
court’s assessment of a specific dollar amount as court costs, we sustain appellant’s
third issue and modify the trial court’s judgment to delete the specific dollar
amount of costs assessed. See id.; see also Mayer v. State, 309 S.W.3d 552, 554–56
(Tex. Crim. App. 2010) (holding that sufficient evidence must support an


       2
        See Tex. Code Crim. Proc. arts. 102.0045, 102.005, 102.011, 102.0169, 102.017 and
Tex. Loc. Gov’t Code §§ 133.102, 133.105, 133.107.


                                           10
assessment of costs in a judgment).

                                      III. CONCLUSION

      Having sustained appellant’s third issue, we modify the judgment to delete
the specific amount of court costs. Having found no reversible error otherwise, we
affirm the judgment as modified.




                                        /s/    Marc W. Brown
                                               Justice



Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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