Opinion issued August 29, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00695-CR
                          ———————————
                    RYAN HUNTER BRAND, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                   On Appeal from the 178th District Court
                           Harris County, Texas
                       Trial Court Case No. 1291950



                                 OPINION

      Appellant Ryan Hunter Brand pleaded guilty to aggravated robbery without

an agreed recommendation as to punishment. See TEX. PENAL CODE ANN. § 29.03

(West 2011). After completion of a presentence investigation report, or PSI, the
trial court conducted a sentencing hearing and sentenced Brand to eight years in

prison. In his sole issue on appeal, Brand argues that the trial court erred by failing

to order, sua sponte, that a psychological evaluation be included in the PSI. See

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(i) (West Supp. 2011). But because the

trial court had no independent duty to develop evidence of Brand’s mental health

in the PSI, we affirm.

      The trial court has discretion to order the preparation of a PSI. See TEX.

CODE CRIM. PROC. ANN. art. 37.07 § 3(d) (“When the judge assesses the

punishment, he may order an investigative report as contemplated in Section 9 of

Article 42.12 of this code . . . .”); Johnson v. State, 357 S.W.3d 653, 654 n.1 (Tex.

Crim. App. 2012). The Code of Criminal Procedure specifies the contents of PSIs:

      [B]efore 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, the criminal and social history of the defendant, and any
      other information related to the defendant or the offense requested by
      the judge.

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(a). The PSI in this case detailed

Brand’s family and criminal history, including reference to his mental health status

and history. The PSI also included an evaluation of his probability of recidivism, a

report called a Level of Service Inventory-Revised, commonly known as an LSI-R.

See Bonnee v. State, No. 14-11-00603-CR, 2012 WL 3862029 at *1 n.1 (Tex.


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App.—Houston [14th Dist.] Sept. 6, 2012, no pet.) (mem. op.); see also Schulte v.

State, No. 01-10-00100-CR, 2012 WL 5381210 at *2 (Tex. App.—Houston [1st

Dist.] Nov. 1, 2012, no pet.) (mem. op., not designated for publication).

          If the felony defendant “appears to the judge through its own observation or

on suggestion of a party to have a mental impairment,” then the PSI is required to

include a psychological evaluation, the reports of which shall be included in the

report. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 9(i). Under the doctrine of

regularity, we presume the trial court would have ordered a psychological

evaluation if it had observed that Brand was suffering from a mental impairment.

Welch v. State, 335 S.W.3d 376, 382 (Tex. App.—Houston [14th Dist.] 2011, pet.

ref’d).

          Brand alleges that the PSI was inadequate because it lacked a more complete

mental health evaluation. But in the trial court he did not challenge either the

general adequacy of the PSI or its specific failure to include a more complete

psychological evaluation. Brand acknowledges that a party must object to the

omission of a psychological evaluation to preserve error, but he nevertheless

argues that we should not consider the objection waived in this appeal because trial

counsel did not have access to important information such as the opinion in Welch

v. State, 335 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d), and

the contents of his LSI-R. He also suggests that not addressing the issue now

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would merely delay the examination of Brand’s psychological condition until later

proceedings, such as a postconviction claim of ineffective assistance of counsel.

      Both arguments lack merit. Trial counsel had access to both the Welch

opinion, which issued five months before Brand’s first sentencing hearing, as well

as the contents of the LSI-R, as trial counsel acknowledged at the beginning of the

sentencing hearing. As for the argument about an inevitable later hearing into the

state of Brand’s psychology, he does not present an ineffective assistance claim on

direct appeal or present any record of evidence beyond mere speculation to suggest

that his trial counsel should have noticed a psychological issue that was not already

described in the PSI. Accordingly, we conclude that any error was waived on

appeal. See Welch, 335 S.W.3d at 382.

      We affirm the judgment of the trial court.



                                             Michael Massengale
                                             Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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