Opinion
No. 01-03-00799-CR
Opinion issued May 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 934736.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Angel Melchor, pled guilty to burglary of a habitation without an agreed recommendation. Following the completion of a pre-sentence investigation (PSI) report, the trial court conducted a sentencing hearing. At the conclusion of the hearing, the trial court found appellant guilty and sentenced appellant to five years in prison. In his sole issue, appellant argues that the trial court erred in sentencing him without ordering appellant to be evaluated for drug or alcohol rehabilitation pursuant to Code of Criminal Procedure article 42.12, section 9(h). The statute provides that, "on determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense," the judge "shall" direct the preparation of an evaluation to determine the appropriateness of rehabilitation for the defendant. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(h) (Vernon Supp. 2004). If the judge assesses punishment in the case, then the evaluation should be made after conviction and before sentencing. Id. art. 42.12, § 9(h)(2). Appellant contends that the trial court erred when it failed to order a section 9(h) evaluation before sentencing because the PSI report indicates that appellant admitted that he was under the influence of drugs during the commission of the burglary offense, had recently smoked marijuana, and "has a substance abuse problem and is in need of treatment." Appellant also points out that, at the punishment hearing, the trial judge made reference to appellant's substance abuse. At the hearing, the judge asked appellant why he had smoked marijuana two or three weeks before the hearing. And, when appellant testified that he did not "have any need" for marijuana, the trial judge remarked that appellant apparently had a need for marijuana when he committed the burglary offense because "you were out smoking marijuana with your friends at the time." The judge then referred to appellant's substance abuse as a "continuing pattern." As mentioned, article 42.12, section 9(h) requires a trial judge to order a substance abuse evaluation after making a "determination . . . that alcohol or drug abuse may have contributed to the commission of the offense." TEX. CODE CRIM. PROC. ANN. art. 42.12, § 9(h)(2). Despite reference to appellant's substance abuse, the judge in this case never made such a determination. The statute does not specify whether this determination is to be made sua sponte by the judge, or whether the defendant must request such a finding in order to trigger the evaluation requirement. See id. Regardless of which is the correct interpretation, we need not address that issue because the contention appellant now raises on appeal was not raised in the trial court. A timely objection or request is a prerequisite to presenting a matter for appellate review. See Tex.R.App.P. 33.1(a). The record shows that appellant failed to object or otherwise bring to the trial court's attention his complaint that the judge failed to order a section 9(h) substance abuse evaluation. Consequently, appellant failed to preserve error, if any, as to this issue for our review. Alberto v. State, 100 S.W.3d 528, 529 (Tex. App.-Texarkana 2003, no pet.) (holding that party must assert his or her right to a substance abuse evaluation in the trial court or it is waived); see also Holloman v. State, 942 S.W.2d 773, 776-77 (Tex. App.-Beaumont 1997, no pet.) (concluding that appellant failed to preserve his complaint when appellant failed to draw trial court's attention to court's failure to order article 42.12, section 9(i) psychological evaluation before sentencing); Wright v. State, 873 S.W.2d 77, 83 (Tex. App.-Dallas 1994, pet. ref'd) (holding that article 42.12, section 9 right to have trial court order preparation of PSI report before sentencing is forfeitable by inaction). We overrule appellant's sole point of error and affirm the judgment of the trial court.
Appellant relies on Overton v. State, 815 S.W.2d 895 (Tex. App.-Fort Worth 1991, no pet.). The Overton case is distinguishable from the instant case on two important points. First, Overton involved a defendant who pled guilty to driving while intoxicated, an offense obviously linked to alcohol or drug use. Id. at 896. Here, appellant was convicted of burglary of a habitation, an offense not necessarily involving substance abuse. Although the record shows that appellant had been smoking marijuana at the time of the burglary, nothing suggests that appellant's substance abuse necessarily contributed to the offense. Second, the Overton court found error because the trial court expressly refused to order an evaluation report on the defendant's request. Id. at 897. In this case, appellant did not request such a report. Because of these factual distinctions, Overton is not applicable to this case.