Affirmed as Modified and Memorandum Opinion filed September 27, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00679-CR

                      DAVID WAYNE HARRIS, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 56th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 14CR2119

                       MEMORANDUM OPINION

      Two issues are raised in this appeal from a conviction for stalking:
(1) whether the evidence is legally sufficient to support the conviction, and
(2) whether the trial court erred by ordering appellant to reimburse the State for the
costs expended on his appointed trial counsel. We conclude that there is sufficient
evidence to support the conviction. We further conclude that the trial court’s
reimbursement order is erroneous. We modify the judgment to delete the
reimbursement order, and we affirm the judgment as modified.
                                 BACKGROUND

       Appellant and the complainant separated in 2004 after four years of
marriage. They remained intimate for the next ten years, but by March of 2014,
their relationship had greatly deteriorated. According to the complainant, appellant
began sending her text messages in which he threatened to kill her. The
complainant reported appellant to police, who arrested him for having made a
terroristic threat.

       Appellant was released from jail on the same day as his arrest, and he
recommenced his threatening text messages the following day. The complainant
reported appellant a second time, and the police executed another arrest nearly two
months later. Once again, appellant was released from jail on the same day as his
arrest, allowing the cycle to begin anew. As the threats continued, the State
decided to prosecute appellant for the felony offense of stalking, in lieu of the
misdemeanor charges for terroristic threats. A jury convicted him of stalking and
assessed punishment at twenty years’ imprisonment.

                      SUFFICIENCY OF THE EVIDENCE

       Standard of Review. When reviewing the sufficiency of the evidence, we
examine all of the evidence in the light most favorable to the verdict and determine
whether a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360
(Tex. Crim. App. 2013). The evidence is legally insufficient when the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense. See Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

       Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact


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finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).

      The Offense. To obtain a conviction for stalking, the State was required to
prove the following essential elements: (1) appellant knowingly engaged in
conduct on more than one occasion and pursuant to the same scheme or course of
conduct directed specifically at the complainant; (2) appellant knew or reasonably
should have known that the complainant would regard this conduct as threatening;
(3) the conduct caused the complainant to be placed in fear for her life; and (4) the
conduct would cause a reasonable person to be placed in fear for his or her own
life. See Tex. Penal Code § 42.072(a); Pomier v. State, 326 S.W.3d 373, 379 (Tex.
App.—Houston [14th Dist.] 2010, no pet.).

      The Evidence. The record contains copies of more than one hundred text
messages that were received by the complainant. From that entire collection, we
reproduce just the following sample:

    “I want to chain you to my bumper and drag you around Santa Fe for all the
      world to see your true colors.”


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 “I’ve got 16 shots. Might as well shoot your lover too. I’m delusional, so I’ll
   get away with it.”

 “I’m [going] to shoot you in front of your kids so they have a real reason to
   hate me.”

 “I want to skin you alive and feed the pieces to the fish.”

 “No jury will convict me for killing you.”

 “I have a ride and a gun. Your ass is mine.”

 “Watch your back. Never know who will get you or when.”

 “I’m going to kill you. Tell the police. Tell whoever will listen, but it won’t
   stop me from killing you.”

 “I’ve killed you a thousand times in my delusions. Can’t wait to do it for
   real.”

 “I’m already going to jail for threatening you, I might as well get my
   moneys worth. Bring a bodyguard.”

 “oooooh. a protective order! is it printed on kevlar and made into a vest?”

 “You should stay away from the windows.”

 “Terroristic threat. Now I’m the father to your kids and a terrorist. You
   should get a gun to protect yourself from me. Shoot to kill.”

 “Check your brake lines every time you get in [the] van.”

 “My heart has no room for you but the trunk of my car definitely does.”

 “How’s it feel living in fear for your life?”

 “See you in court. If you live that long.”

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      Appellant acknowledges the threatening nature of these text messages, but
he claims that there is legally insufficient evidence to prove that he sent them. We
disagree. Business records established that all of the text messages were sent from
a single phone number, and that number was registered in appellant’s name. The
complainant also testified that the text messages were coming from appellant’s
personal phone number. The jury could have credited this evidence and reasonably
found that appellant composed and sent each text message.

      The jury could have also found that appellant’s text messages caused the
complainant to be placed in fear. The complainant testified that she “lived in fear
every day.” She explained that she had to check her vehicle before she entered it,
and she “was always looking over [her] shoulder in fear that [appellant] was either
there or following [her].”

      Appellant’s conduct would also cause a reasonable person to fear for his or
her own life. By their express language, appellant’s text messages threatened the
complainant with death. In addition to this grave language, the messages
occasionally included images, and one of the images was a recent photograph of
the complainant’s personal residence. The image demonstrated that appellant was
watching the complainant and could sneak up on her at any moment.

      The State produced evidence that appellant made calls to the complainant,
apart from the text messages. Appellant argues that this evidence is insufficient to
support his conviction because there is no proof that the calls were threatening or
that they placed the complainant in fear for her life. We need not address this
argument because the evidence of appellant’s text messages are sufficient to
support his conviction for stalking. All of the text messages were directed
specifically towards the complainant. The evidence supports a finding that
appellant knowingly sent the text messages, which he knew or should have known

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were threatening, which placed the complainant in actual fear for her life, and
which would cause a reasonable person to fear for his or her own life. See Tex.
Penal Code § 42.072(a).

      The jury could have found every essential element of the offense beyond a
reasonable doubt. See Werner v. State, 412 S.W.3d 542, 550 (Tex. Crim. App.
2013) (evidence of stalking was overwhelming where the defendant used illegal
tracking devices and sent the complainant intimidating text messages).
Accordingly, we overrule appellant’s first issue.

                          REIMBURSEMENT ORDER

      The judgment of conviction includes a provision that orders appellant to
reimburse the State for the costs of his appointed trial counsel. The amount of the
reimbursement order is $3,465.59. In his second issue, appellant argues that the
trial court erred by ordering this reimbursement because he is indigent and because
there is no evidence showing that he has the financial resources or ability to pay for
his appointed counsel.

      The trial court has the authority to order the reimbursement of appointed
attorney’s fees “[i]f the judge determines that a defendant has financial resources
that enable the defendant to offset in part or in whole the costs of the legal services
provided.” See Tex. Code Crim. Proc. art. 26.05(g). “[T]he defendant’s financial
resources and ability to pay are explicit critical elements in the trial court’s
determination of the propriety of ordering reimbursement of costs and fees.”
Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). We review the
evidence in the light most favorable to the judgment when deciding whether the
record contains legally sufficient evidence to support these elements. Id. at 557.
Absent sufficient evidence, the defendant may not be ordered to pay attorney’s


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fees. See West v. State, 474 S.W.3d 785, 795 (Tex. App.—Houston [14th Dist.]
2014, no pet.).

      Appellant was found to be indigent before trial. By law, he was presumed to
have remained indigent for the remainder of his proceedings unless a material
change in his financial circumstances occurred. See Tex. Code Crim. Proc. art.
26.04(p). Our record does not reveal any evidence of changed financial
circumstances, and the State concedes that there is none. Because there is no
evidence that appellant has the financial resources or ability to pay for the costs of
his appointed trial counsel, the reimbursement order is erroneous and should be
deleted. Accordingly, we sustain appellant’s second issue.

                                  CONCLUSION

      We modify the judgment by deleting the reimbursement order and affirm the
judgment as modified.




                                       /s/       Tracy Christopher
                                                 Justice




Panel consists of Chief Justice Frost and Justices Boyce and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).




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