                                 NO. 12-12-00396-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

DAPHNE DAKEISHA AUSBORNE,                      §      APPEAL FROM THE 241ST
APPELLANT

V.                                             §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                       §      SMITH COUNTY, TEXAS



                                 MEMORANDUM OPINION
       A jury convicted Appellant, Daphne Dakeisha Ausborne, of possession of a controlled
substance with intent to deliver and assessed her punishment at imprisonment for eighty-five
years. Appellant challenges the sufficiency of the evidence to support her conviction, the court
costs assessed, and the restitution ordered. We modify the judgment and affirm as modified.


                                        BACKGROUND
       Tyler narcotics officers received reports that Mike Howard, a notorious crack cocaine
dealer, had moved his business to 1307 West Queen Street in Tyler, Texas. Ten days of
surveillance confirmed the report. Before the day of the raid, confidential informants bought
crack cocaine from “Mike’ on two occasions with bills that had been photocopied. A search
warrant was obtained. Prior to the execution of the warrant, a SWAT team and Tyler narcotics
officers kept the house under close observation for approximately fifty minutes before entering
the house at 7:21 p.m.
       Upon entry, the SWAT team found Terrence Jackson seated in the living room seven feet
from the front door. A loaded .22 caliber pistol was discovered between the cushion and arm
rest of his chair. A digital scale was at his feet. Mike Howard was in the kitchen. Patricia
Daniel was in the west bedroom. An unloaded .22 rifle, a partially smoked marijuana blunt, a
tray with cocaine residue, and a crack pipe were also in the west bedroom.
        Office Harrington of the SWAT team found Appellant coming out of a closet in the east
bedroom. She was obviously pregnant and extremely excited. Within less than a minute, the
SWAT team had handcuffed all four occupants and removed them from the house.
        In the east bedroom where Appellant had been discovered, the narcotics officers found a
partially open plastic jar containing thirty-two rocks of crack cocaine.         Appellant’s purse
containing $200.00 in ten and twenty dollar bills was located within a foot of the cocaine. A
loaded .22 caliber pistol lay nearby under a sheet. Patricia Daniel’s purse was also on the bed.
        A black backpack of unknown ownership lay on the floor against the wall of the
bedroom. Inside the backpack was a .25 caliber automatic pistol, a notebook, and index cards
with entries related to drug sales. Also against the wall was a maroon basket containing a spiral
notebook and some .38 caliber ammunition. Women’s clothing was also scattered about the
room.
        The police arrested Michael Howard and Appellant for possession of a controlled
substance with intent to deliver. Patricia Daniel was arrested on outstanding traffic warrants.
Terrence Jackson was released.
        Terrence Jackson was presumed to be the father of Appellant’s child. Most of the
messages on Jackson’s cell phone appeared related to drug traffic. Although none of the cell
phone messages were related to Appellant, a cell phone picture of Appellant at the front door of
1307 West Queen Street was retrieved from Jackson’s cell phone.
        The officers found no narcotics on Appellant’s person. Her fingerprints were not on the
plastic jar containing the crack or on any of the weapons found inside the house.               The
confidential informants who bought crack from “Mike’ reported no contact with Appellant or
any other female while in the house. None of the transactions recorded in the ledgers and index
cards were shown to be related to Appellant or in her handwriting. No utility bills or other
documents linked Appellant to the 1307 West Queen Street address.


                                            POSSESSION
        In her first issue, Appellant contends the evidence is legally insufficient to prove that she
possessed the alleged contraband.



                                                 2
       In determining a challenge to the legal sufficiency of the evidence, the reviewing court
must consider all the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61
L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).
Standard of Review and Applicable Law
       To prove unlawful possession of a controlled substance, the state must prove that (1) the
defendant exercised control, management, or care over the substance, and (2) the defendant knew
the substance possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim.
App. 2005).
       Mere presence at the location where drugs are found does not establish care, custody, or
control of those drugs. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). However,
presence or proximity, when supplemented by other evidence, either direct or circumstantial,
may be sufficient to establish that element beyond a reasonable doubt. Id. Texas courts have
recognized many circumstances that serve, singly or in combination, to connect a defendant to
the contraband. See e.g., id. at 162 n.12; Willis v. State, 192 S.W.3d 585, 593 (Tex. App.–Tyler
2006, pet. ref’d). The critical issue is whether there is evidence of circumstances, in addition to
mere presence, that would adequately justify the conclusion that the defendant knowingly
possessed the substance. Evans, 202 S.W.3d at 166.
Discussion
       Appellant argues that the circumstances connecting her to the crack cocaine were
“minimal.” Although her purse was found close to the closed plastic jar containing the cocaine,
the purse of another female occupant of the house was also found close to the contraband. The
women’s clothing found in the bedroom with the drugs was not shown to belong to Appellant.
       Appellant argues that there was no fingerprint evidence connecting her to the container of
crack cocaine or the .22 caliber pistol also found nearby. The police found no drugs or drug
paraphernalia on her person. None of the modest amount of money she had could be traced to
money known to have been exchanged for drugs. There was no proof that the entries in the
various drug ledgers had been made by her or were related to her. The drug related text
messages retrieved from the cell phones found in the house had no apparent connection to
Appellant.



                                                3
       Overlooked by Appellant were other circumstances that, when considered together with
her presence, justify the inference that Appellant’s connection to the cocaine was more than “just
fortuitous.” When the officers entered the house, she was the sole occupant of the room where
all the crack was found. The container of cocaine was on the side of the bed nearest the closet
and easily accessible to her. Her purse was within twelve inches of the cocaine. Appellant was
apprehended in a working crack house where she had spent nearly an hour before the police raid.
A loaded .22 caliber revolver lay on the bed under a sheet close to her purse and the cocaine and
was within her reach. Appellant had approximately $200.00 in her purse when she was arrested.
Most of the cash was in twenty dollar bills. Twenty dollars was the typical price paid for crack
rocks like those found in the house. Appellant’s conduct indicated consciousness of guilt. She
was extremely agitated when arrested.        She continued yelling and moving about although
ordered to “stand still.” Appellant appeared “high’ when arrested indicating use of the drugs.
She had a close relationship with Terrence Jackson, who, his cell phone messages show, was
taking orders for drugs until the time of the police raid.
       We conclude that the logical force of the direct and circumstantial evidence in this case is
sufficient to establish beyond a reasonable doubt that Appellant knowingly possessed the crack
cocaine. Appellant’s first issue is overruled.


                                           COURT COSTS
       In her second issue, Appellant maintains the trial court erred in imposing court costs not
supported by a statutorily required bill of costs.
Applicable Law
       A judgment of conviction “shall also adjudge the costs against the defendant, and order
the collection thereof as in other cases.” TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006).
       “A cost is not payable by the person charged with the cost until a written bill is produced
or is ready to be produced, containing the items of cost, signed by the officer who charged the
cost or the officer who is entitled to receive payment of the cost.” TEX. CODE CRIM. PROC. ANN.
art. 103.001 (West 2006). When a trial court’s assessment of costs is challenged on appeal and
no bill of costs is in the record, it is appropriate to supplement the record pursuant to Rule
34.5(c) because a bill of costs is required by Article 103.006. Ballinger v. State, No. 12-12-




                                                     4
00280-CR, 2013 WL 3054935, at *1 (Tex. App.–Tyler June 19, 2013, no pet.) (not yet released
for publication).
         In the instant case, the judgment reflects assessed costs of 344.00. The bill of costs filed
as a supplement to the clerk’s record listed costs of $644.00. The order to withdraw funds
authorizes the withdrawal of $644.00 from Appellant’s trust account. The bill of costs includes
$300.00 in attorney’s fees not included in the judgment but included in the order to withdraw
funds.
         The costs assessed against Appellant, other than the attorney’s fees, are appropriate and
authorized by statute.
         The State concedes that the assessment of $300.00 in attorney’s fees is not supported by
the finding required by Texas Code of Criminal Procedure Article 26.05. The trial court had
previously determined that Appellant was indigent. She is presumed to remain indigent for the
remainder of the proceedings unless a material change in her circumstances occurs. TEX. CODE
CRIM. PROC. ANN. art. 26.04 (West 2009). Where the record does not contain a determination by
the trial court that Appellant’s financial circumstances have materially changed or a finding that
Appellant had the financial resources to pay the assessed attorney fee, this court may modify the
judgment and withdrawal order, deleting the assessment of $300.00 in attorney’s fees as court
costs. See Mayer v. State, 274 S.W.3d 898, 901-02 (Tex. App.–Amarillo 2008), aff’d, 309
S.W.3d 552 (Tex. Crim. App. 2010). Appellant’s second issue is sustained in part.


                                            RESTITUTION
         In her third issue, Appellant complains the trial court erred in ordering her to pay $140.00
to the Texas Department of Public Safety. Appellant contends (1) there is no statutory authority
for restitution to the DPS when the defendant is sentenced to imprisonment, and (2) there is no
evidence in the record to support the imposition of restitution.
         To preserve her complaint that the trial court lacked statutory authority, Appellant was
required to make a timely request, objection, or motion with sufficient specificity to apprise the
trial court of her complaint. TEX. R. APP. P. 33.1(a); Idowu v. State, 73 S.W.3d 918, 921 (Tex.
2002) (“If a defendant wishes to complain about the appropriateness of (as opposed to the factual
basis for) a trial court’s restitution order, [s]he must do so in the trial court, and [s]he must do so




                                                  5
explicitly.”). By failing to object to the trial court’s order of restitution to the DPS, Appellant
failed to preserve error as to that portion of her complaint. Id.
         In her third issue, Appellant also contends the trial court’s reimbursement order is not
supported by sufficient evidence. A complaint regarding the sufficiency of the evidence may be
urged for the first time on appeal. Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App.
2010). An order of restitution must be supported by sufficient evidence. Cartwright v. State,
605 S.W.2d 287, 289 (Tex. Crim. App. 1980). Here, the trial court’s order requiring restitution
in the amount of $140.00 to DPS has no support in the record. The State concedes the error and
also requests that the judgment and Attachment A be modified to delete the $140.00 payable to
DPS as restitution. Appellant’s third issue is sustained.


                                                  DISPOSITION
         We have sustained Appellant’s second issue in part and her third issue. Accordingly, we
modify Attachment A to delete the assessment of $644.00 in court costs and to state that the total
amount of “court costs, fees and/or fines and/or restitution” is $344.00. We also modify the
judgment to delete the order that Appellant pay the DPS $140.00 as restitution. In all other
respects, the judgment is affirmed.


                                                                               BILL BASS
                                                                                Justice

Opinion delivered September 4, 2013.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment




                                             (DO NOT PUBLISH)



                                                          6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         SEPTEMBER 4, 2013


                                          NO. 12-12-00396-CR


                               DAPHNE DAKEISHA AUSBORNE,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1044-12)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that Attachment
A to the trial court’s judgment be modified to state that the total “court costs, fees and/or fines
and/or restitution” is $344.00; that the trial court’s judgment be modified to delete the order that
Appellant pay the DPS $140.00; that as modified, the trial court’s judgment is affirmed; and
that this decision be certified to the trial court below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
