                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00045-CR



        STEPHEN BLANE FULTNER, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 71st District Court
                Harrison County, Texas
               Trial Court No. 14-0307X




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                MEMORANDUM OPINION
       In a two-count indictment, Stephen Blane Fultner was charged with the aggravated sexual

assault of two children. After a bench trial, Fultner was found guilty of both counts, and the trial

court sentenced him to thirty-five years’ imprisonment for each count with the sentences to run

concurrently.

       On appeal, Fultner argues that the State erred by failing to inform the court which events

of sexual assault it was relying on for conviction, that the trial court erred by not requiring the

State to specify which sexual-assault events it was relying on for conviction, that the trial court

erred by not holding a hearing on the motion for findings of fact and conclusions of law, and that

the evidence supporting his convictions was legally insufficient.

       We modify the judgment by deleting the assessment of attorney fees and affirm the trial

court’s judgment, as modified, because (1) the State was not required to make an election,

(2) Fultner requested no hearing on his request for findings and conclusions, (3) there is no

adequate reason given on which to find the evidence insufficient, and (4) attorney fees are not

chargeable to an indigent criminal defendant.

(1)    The State Was Not Required to Make an Election

       Here, the child victims, S.W. and L.H., testified to various instances of sexual assault,

occurring both before and after the date of the offense alleged. In his first two points of error,

Fultner contends that the State erred by failing to inform the court on which events of sexual assault

it was relying for conviction under the indictment and that the trial court erred by not requiring the

State to do so.


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         In statutory rape cases, the State may introduce evidence that the accused, either prior or

subsequent to the date charged, committed other acts of fondling or intercourse on the underage

victim. Martin v. State, 400 S.W.2d 919, 921 (Tex. Crim. App. 1966); Lozano v. State, 266 S.W.2d

147 (Tex. Crim. App. 1954). On a motion of the defendant, the State is required to elect as to

which act it will rely on for a conviction. Bates v. State, 305 S.W.2d 366, 368 (Tex. Crim. App.

1957). Here, Fultner failed to file a motion to elect, therefore, the State was not required to make

an election. See id.

         Fultner also argues that the trial court erred by not ordering the State to make an election.

However, he fails to cite any authority indicating that it is the trial court’s duty to sua sponte

require an election, and we are aware of none. Accordingly, we overrule his first two points of

error.

(2)      Fultner Requested No Hearing on His Request for Findings and Conclusions

         Fultner argues that the trial court erred by not holding a hearing on the motion for findings

of fact and conclusions of law. However, because Fultner did not request a hearing on the motion,

he has forfeited the right to complain on appeal that the trial court erred in failing to hold such a

hearing. See TEX. R. APP. P. 33.1(a)(1); Shannon v. State, 116 S.W.3d 52, 54–55 (Tex. Crim. App.

2003). As this issue is unpreserved for our review, we overrule this point of error.

(3)      There Is No Adequate Reason Given on Which to Find the Evidence Insufficient

         Fultner’s brief challenges the sufficiency of the evidence in a cryptic section, which reads,

in its entirety:

         There being no election by the State as to which event they were relying on, no
         finding of facts by the Court as to which event it was relying on, and there being
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         no obvious event for the Court to rely on, therefore the evidence is insufficient to
         support a conviction.

         Clearly the evidence is insufficient as presented.

         Because this point of error contains neither citations to the record nor citations to any

authority, it provides us no adequate reason on which to find that the evidence supporting the jury’s

verdicts is insufficient. See TEX. R. APP. P. 38.1(i); Tutt v. State, 339 S.W.3d 166, 172–73 (Tex.

App.—Texarkana 2011, pet. ref’d). We see no such reason. Therefore, we overrule this point of

error.

(4)      Attorney Fees Are Not Chargeable to an Indigent Criminal Defendant

         Notwithstanding that trial counsel and appellate counsel were appointed for Fultner,

ostensibly on the basis that he was indigent during the trial court proceedings and at the time he

began the appeal process, attorney fees were assessed against Fultner in the trial court’s judgment.

         A trial court may order a criminal defendant to pay the fees of appointed counsel if the

court determines that the defendant has resources “to offset in part or in whole the costs of legal

services provided . . . .” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2016). Once a

defendant has been found indigent, that status is presumed to continue unless the record contains

evidence of a material change in those financial circumstances. TEX. CODE CRIM. PROC. ANN. art.

26.04(p) (West Supp. 2016); see Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010);

Martin v. State, 405 S.W.3d 944, 946–47 (Tex. App.—Texarkana 2013, no pet.).

         Given that Fultner was initially declared indigent, in the absence of any subsequent

evidence or finding of any change in financial condition or that Fultner has recovered from


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indigency, the assessment of attorney fees against him was improper. We therefore modify the

judgment of the trial court by striking the assessment of attorney fees.

       We affirm the judgment, as modified.



                                                      Josh R. Morriss, III
                                                      Chief Justice

Date Submitted:        October 25, 2016
Date Decided:          November 4, 2016

Do Not Publish




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