

NO. 07-10-00126-CR
 
IN THE
COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL D
 

AUGUST
19, 2010
 

 
ARELL COLE, JR.,  
 
                                                                                         Appellant

v.
 
THE STATE OF TEXAS,  
 
                                                                                         Appellee
___________________________
 
FROM THE COUNTY COURT AT LAW OF McLENNAN
COUNTY;
 
NO. 20093647CR1; HONORABLE MIKE
FREEMAN, PRESIDING
 

 
Memorandum
Opinion
 

 
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
            Arell Cole, Jr. appeals his conviction for
driving while intoxicated and raises two issues.  He first claims that 1) the trial court erred
in ordering him to pay court-appointed attorney’s fees when the record
contained no evidence that he was capable of doing so, and then posits that 2) it
abused its discretion in admitting hearsay testimony from two paramedics regarding
conversations they overheard between him and his wife.  We modify the judgment and affirm it as
modified.
            
Background
            Appellant
and his wife were involved in a one-car accident on July 11, 2009, at around 2:45
a.m.  Emergency personnel who arrived at
the scene believed that appellant was the driver of the vehicle based on
statements he made, the location in which they found him, the position of the
driver’s seat, and other circumstantial evidence.  Two paramedics also overheard separate
conversations between appellant and his wife wherein they discussed who should
take responsibility for being the driver. 
Appellant was found to have a .20 blood alcohol concentration at the
time of the accident, and the only contested issue at trial was whether he had
been driving the vehicle.  
            Issue 1 – Payment of Court-Appointed
Attorney’s Fees
            In the judgment, the trial court
ordered appellant to pay “all costs in this cause.”  Also appearing on the same document is a
stamped notation after the trial judge’s signature stating:  “It is ORDERED that all court appointed
attorney fees in this case shall be taxed as costs of court pursuant to Art.
26.05(f), Tx. Code of Criminal Procedure.”[1]  When this notation was placed on the judgment
and by whom is unknown since neither a date nor initials appear next to
it.  Nevertheless, appellant contends
that the evidence is legally insufficient to support the directive.  We sustain the issue.
            If a court
determines that a defendant has the financial resources to offset, in whole or
part, the costs of legal services provided him, the trial court shall order him
to pay for those services to the extent that he can.  Tex.
Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009); see Sauceda v. State, 309 S.W.3d 767,
770 (Tex. App. –Amarillo  2010, no pet.)
(addressing the matter).  Implicit
therein is the need for 1) the trial court to find that appellant is capable of
paying for some or all of that expense and 2) evidence supporting that
determination.
            Here, the
trial court did not specify a particular amount of fees that should be
repaid.  Nor did it find that appellant
had sufficient financial resources to pay any of the expenses at issue.  Instead, it twice (at trial and on appeal) appointed
legal counsel to represent appellant.  It
is elemental that before such appointments could have been made, appellant had
to have been deemed indigent, that is, without sufficient economic or financial
resources to pay for his own attorney.  Trammell v. State, 287 S.W.3d 336, 343
(Tex. App.–Fort Worth 2009, no pet.) (explaining when a defendant is entitled
to appointed counsel).  More importantly,
appellant being found indigent for purposes of gaining appointed counsel hardly
establishes that he had sufficient financial resources to offset the expenses
incurred in providing him an attorney. 
The contrary seems rather logical, as the State seemed to recognize in
its brief.  So too is it true that once a
defendant is found indigent, he is presumed to remain so for the remainder of
the proceedings, unless there is some proof that his financial resources
materially changed.  Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Sauceda v. State, 309 S.W.3d at 770.  And, we have no such showing before us.
            As for the
State’s request to have the cause abated and remanded, it is rather settled
that when the evidence is held to be legally insufficient to support a finding,
the cause cannot be simply abated and remanded for additional factual development.  Mayer
v. State, 309 S.W.3d at 557.  Thus,
the State does not get another opportunity to bite at the attorney’s fee apple,
especially when we are cited to nothing of record suggesting that it was
precluded from taking a first bite.   
Issue 2 – Hearsay
Testimony
Next, appellant complains that the trial
court erred in admitting the testimony of two paramedics who testified about
overhearing appellant and his wife discuss who should admit to driving the
vehicle at the time of the accident. 
Appellant objected to the testimony on the grounds of hearsay.  We overrule the issue.     
            Hearsay is a statement, other than
one made by the declarant while testifying at trial, offered to prove the truth
of the matter asserted.  Tex. R. Evid. 801(d).  The statements at bar consisted of both
paramedics testifying that they overheard appellant state that he was driving
the vehicle after his wife suggested that all should be told that she was
driving.  While appellant’s utterance
could be considered hearsay, it can also be reasonably interpreted as a
statement against interest.  As such, it
can be admitted as an exception to the hearsay rule.  See id.
803(24) (stating that an exception to the hearsay rule is one which at the
time of its making was so far contrary to the declarant’s interest or so far
tended to subject him to criminal liability that a reasonable person would not
have made the statement unless believing it to be true).  
            As for
reiteration of the wife’s portion of the conversation, it could be reasonably
interpreted as providing the context for appellant’s admission.  As such, it was not being offered to prove
the substance of what was being asserted, i.e.
that the wife drove the car.  See Stallings v. State, 476 S.W.2d 679,
681 (Tex. Crim. App. 1972) (stating that testimony from the complaining witness
as to a statement made by the defendant’s wife immediately prior to the crime
to the effect that the defendant was wanting to cut her throat was not hearsay
because it was made in the defendant’s presence and not offered to prove that
appellant had actually assaulted his wife).   Therefore, we cannot say the trial court
abused its discretion in admitting the testimony at issue.
            Accordingly,
we modify the judgment to delete that portion requiring appellant to pay
attorney’s fees and affirm the remainder.
 
                                                                                    Brian
Quinn 
                                                                                    Chief
Justice
 
Do
not publish. 




[1]The
record does not indicate what portion of the court costs were represented by
attorney’s fees.  


