                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00190-CR


JUAN TOVAR                                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12544

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                        MEMORANDUM OPINION 1

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      After a bench trial, the trial court convicted Appellant Juan Tovar of sexual

assault of a child and sentenced him to fifteen years’ confinement. Appellant

brings two points on appeal, challenging the sufficiency of the evidence to

support his conviction and to support the imposition of attorney’s fees and other

costs. Because we hold that the evidence is sufficient to support the conviction,

      1
       See Tex. R. App. P. 47.4.
we affirm the trial court’s judgment as to the conviction and sentence.        But

because the trial court erred by ordering Appellant, who is indigent, to pay

attorney’s fees and other costs, we reverse the trial court’s judgment as to costs,

and we likewise reverse the trial court’s order to withdraw funds. We remand this

case to the trial court for the sole purpose of modifying both the judgment and the

order to withdraw funds to reflect the proper amount of costs that Appellant

should be ordered to repay despite his indigence.

Brief Facts

      Complainant was twenty-five years old at the time of Appellant’s trial and

had two children, one of whom was born when Complainant was sixteen years

old. Complainant used methamphetamine as a teenager and young adult, and

she was imprisoned and sent to a substance abuse felony punishment facility

(SAFPF) for methamphetamine possession. At the time of Appellant’s trial, she

resided in a therapeutic transition center as a condition of her release from the

SAFPF. The same trial court that convicted Appellant had previously placed

Complainant on community supervision for possession of a controlled substance.

Complainant also had contact with Child Protective Services (CPS).            CPS

investigators discovered that Appellant was the father of her elder son and

reported a sexual assault to law enforcement.

      Appellant was fifty-three years old at the time of his trial. He had been a

neighbor and friend of Complainant’s family, and his children had played with

Complainant and her siblings.       When Complainant was fifteen years old,


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Appellant offered to help her parents by picking her up from the behavioral

transition center at the local school, commonly known as “BTC.” On the way

home from BTC, Appellant often parked his van in a secluded area, where he

gave Complainant methamphetamine and fondled her breasts.            Complainant

testified that on at least two occasions, Appellant gave her methamphetamine in

exchange for sexual intercourse. She discovered that she was pregnant on her

sixteenth birthday.

      Appellant testified that one day after he had been to a barbeque at the

home of Complainant’s parents, Complainant and her brother gave him a blue pill

and two white pills. Appellant explained at trial that he had no memory of what

happened for the remainder of that day. The next day, Appellant’s friends teased

him about having had sex with Complainant after he took the pills.

      Complainant testified about giving Appellant the pills. She confirmed that

she and her brother had given Appellant a blue Viagra pill as a joke when he

complained of tooth pain. She also explained that the pill incident had occurred

after Appellant had sex with her and while she was pregnant.         Complainant

denied that she ever gave Appellant pills that made him pass out or that would

allow her to have sex with him without his knowledge.

      Investigator Robert Young investigated the CPS report regarding the

paternity of Complainant’s elder child.      Young obtained DNA samples from

Complainant, her son, and Appellant.        The University of North Texas Health




                                        3
Science Center performed DNA analyses on the samples. The testing proved

that Appellant was the father of Complainant’s elder child.

Sufficient Evidence of Guilt

         In his first point, Appellant challenges the sufficiency of the evidence to

support his conviction.     In our due-process review of the sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. 2

Appellant contends that the requisite mental state—intentionally or knowingly 3—

presumes that his actions were voluntary.          He argues that “voluntariness”

“necessarily requires that the State prove that [he] intended to do the act

complained of, and it does not include the product of unconsciousness, hypnosis

or other non-volitional causes that are not voluntary.” 4 Appellant argues that his

actions were not voluntary and therefore not intentionally or knowingly done.

Consequently, he argues, the evidence is insufficient to support the verdict of

guilt.




         2
      Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
         3
         See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West 2011).
         4
         See Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003).



                                          4
      The trial judge, as the trier of fact, is the sole judge of the credibility of the

witnesses and the inferences and conclusions to be drawn from the credible

evidence. 5 Although there was evidence of Appellant’s involuntary intoxication,

there was also evidence that he engaged in sexual intercourse on two occasions

and that Complainant was already pregnant when the involuntary intoxication

allegedly happened. As Appellant concedes, no corroboration was necessary

because Complainant was a minor at the time of the offense,6 and, as the State

points out, to the extent that corroboration could ever be needed, the DNA test

results provide it. We therefore hold that the evidence was sufficient to support

the trial court’s judgment of guilt. We overrule Appellant’s first point.

Attorney’s Fees and Other Costs

      In his second point, Appellant challenges the sufficiency of the evidence

supporting the trial court’s order that he pay attorney’s fees and other costs.

Appellant argues that the trial court found him indigent and appointed counsel to

represent him. A “defendant who is determined by the court to be indigent is

presumed to remain indigent for the remainder of the proceedings in the case

unless a material change in the defendant’s financial circumstances occurs.” 7


      5
         Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011).
      6
         Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (West Supp. 2014).
      7
         Id. art. 26.04(p); Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App.
2013).



                                          5
      The trial court found that Appellant was indigent. The record does not

reflect that Appellant’s indigent status changed before the trial court ordered him

to pay attorney’s fees and other costs. In the best tradition of seeking justice

rather than self-aggrandizement, the State candidly agrees with Appellant’s

statement of the facts and the applicable law regarding attorney’s fees. We

therefore sustain Appellant’s second point as to the order to pay attorney’s fees.

      When the record does not contain a factual basis to support imposition of

attorney’s fees, the proper remedy is to delete the order to pay attorney’s fees. 8

However, the bill of costs and judgment provide one amount for total costs, and

the order to withdraw funds provides another, lesser amount. The difference

between the cost amount in the judgment and the cost amount in the order to

withdraw funds is not the amount of attorney’s fees given in the bill of costs. That

is, from the record before us, we cannot determine the amount of attorney’s fees

assessed against Appellant in the judgment and order to withdraw funds. We are

therefore unable to modify the judgment and order to withdraw funds by deleting

the attorney’s fee assessment. We also note that Appellant has in this court

generally challenged the costs assessed against him by the trial court but has not

challenged a specific cost listed in the bill of costs other than attorney’s fees. We

decline to review the correctness of each court cost charged to Appellant when



      8
       Cates, 402 S.W.3d at 251–52.



                                         6
he has not done so. 9 But as Appellant points out, article 103.008 of the code of

criminal procedure allows him to seek such relief in the trial court up to a year

after final disposition of the case. 10

Conclusion

         Accordingly, we affirm in part and reverse and remand in part. Having

found the evidence sufficient to support Appellant’s conviction and sentence, we

affirm the trial court’s judgment as to Appellant’s conviction and sentence. But

having found the evidence insufficient as to the award of attorney’s fees against

Appellant, we reverse the trial court’s judgment and the order to withdraw funds

solely as to the attorney’s fees and other costs ordered. We remand this case

only so that the trial court may delete the attorney’s fee assessment from the

judgment and order to withdraw and may also, subject to Appellant’s filing an

article 103.008 motion in the trial court, correct any errors in the remaining costs,

given Appellant’s indigent status. 11




         9
        See Crisp v. State, 413 S.W.3d 224, 227 (Tex. App.—Fort Worth 2013,
pet. ref’d).
         10
             See id. at 227 n.2; Tex. Code Crim. Proc. Ann. art. 103.008 (West 2006).
         11
             See Tex. Code Crim. Proc. Ann. art. 103.008; Crisp, 413 S.W.3d at 227
& n.2.



                                            7
                                         /s/ Lee Ann Dauphinot
                                         LEE ANN DAUPHINOT
                                         JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 14, 2015




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