                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-19-00108-CR


                  CHRISTOPHER BRADLEY ARTHUR, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 28488C, Honorable Ana Estevez, Presiding

                                    January 30, 2020

                            MEMORANDUM OPINION
                     Before QUINN, C.J., and PARKER and DOSS, JJ.

      Christopher Bradley Arthur appeals his conviction for aggravated robbery. His two

issues involve whether 1) the State presented sufficient evidence establishing that he

used or exhibited a “firearm” during the course of the theft and 2) he can be assessed the

obligation of paying $8,577 in court-appointed attorney’s fees. We modify the judgment

and affirm as modified.

      We address the second issue first, for the State conceded its accuracy. The record

lacks evidence indicating a change in appellant’s status as an indigent. Nonetheless, he
was assessed attorney’s fees in the bill of costs, which bill the trial court referred to in its

judgment. A defendant determined to be indigent by the trial court is presumed to remain

indigent for the remainder of the proceedings unless there occurs a material change in

his financial circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2019).

And, unless the record illustrates such a change, imposition of court-appointed attorney’s

fees is inappropriate. Arguijo v. State, No. 07-17-00240-CR, 2018 Tex. App. LEXIS 8153,

at *7–8 (Tex. App.—Amarillo Oct. 5, 2018, pet. ref’d) (mem. op., not designated for

publication).   Thus, we sustain the second issue and modify the judgment and

accompanying bill of costs to remove therefrom all references to an assessment of

attorney’s fees against appellant.

       Through his first issue, appellant contends that the evidence was insufficient to

prove that the item he discharged or exhibited during the theft was a firearm. He said it

was a BB gun and the State failed to prove otherwise. We overrule the issue.

       That appellant exhibited a weapon in his hand after being caught in a parking lot

rummaging through another person’s car without permission is undisputed.                   That

appellant discharged it, left in another vehicle, and had both a .380 semi-automatic pistol

and a BB gun with him when stopped by the police also is undisputed. Nor does appellant

deny the presence of evidence indicating that the projectile discharged from the weapon

cut a grove in the parking lot and struck a nearby car door, denting it.

       Moreover, the car owner described, at trial, how appellant “kind of scrambled

around, reached into his pocket, pulled out a small firearm and shot it at me.” The witness

also testified that he has heard a BB gun, pellet gun, and firearm being shot before and

what appellant discharged “was definitely a real gun.” There also happened to be found



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in the area of the shooting a spent .380 casing manufactured by Blazer. The bullets found

in the magazine of the .380 possessed by appellant were manufactured by Blazer too, as

was the partially empty box of .380 ammunition he had in his vehicle.

       To that we add the testimony of an ex-investigator with the TDPS who had firearms

training and experience with such weapons. He testified to 1) being near the scene of

the altercation between appellant and the vehicle owner, 2) hearing a “gunshot,” and 3)

eventually seeing an expended shell on the ground. The State also queried him about

what happens when one fires a semi-automatic handgun. He described how the spent

casing is ejected from the weapon when discharged.

       The pertinent standard of review obligates us to consider all the evidence in the

light most favorable to the verdict to determine if any rational fact-finder could have found

the essential elements of the offense beyond reasonable doubt. Smith v. State, No. 07-

18-00298-CR, 2019 Tex. App. LEXIS 9383, at *9 (Tex. App.—Amarillo Oct. 23, 2019, pet.

filed) (mem. op., not designated for publication). All evidence includes both direct and

circumstantial evidence. Id. Furthermore, the jury is the only judge of the weight and

credibility of the evidence, and we must assume that it resolved conflicting inferences

arising from the evidence in favor of its verdict. Id. at *10. That said, we hold the foregoing

evidence was more than ample to allow a rational fact-finder to conclude, beyond

reasonable doubt, that the item appellant removed from his pocket, pointed at the car

owner, and discharged was a firearm. See TEX. PENAL CODE ANN. § 46.01(3) (West Supp.

2019) (defining “firearm” as “any device designed, made, or adapted to expel a projectile




                                              3
through a barrel by using the energy generated by an explosion or burning substance or

any device readily convertible to that use”).1

        We modify the judgment and accompanying bill of cost to redact all references to

appellant being assessed attorney’s fees and affirm the judgment as modified.



                                                                Per Curiam



Do not publish.




        1 We note that appellant’s reliance on the evidentiary analysis in Cruz v. State, 238 S.W.3d 381,

388 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d), is somewhat misplaced. The court there dealt with
whether testimony that the item held by the accused was a “gun” sufficed. Here, we not only have evidence
that appellant held a “firearm” but that it looked, sounded, and left spent bullet casings like one.

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