                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-17-00127-CR


                      EARL VEENCHETT SIMMONS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                        On Appeal from the County Court at Law No 1
                                   Randall County, Texas
            Trial Court No. 2015-0667-1, Honorable James W. Anderson, Presiding

                                      April 5, 2019

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant Earl Veenchett Simmons appeals from his conviction of the offense of

indecent exposure1 and his court-imposed sentence of confinement for 180 days. He

raises three appellate issues, contending the trial court erred by admitting evidence of his

previous convictions, he received ineffective assistance of counsel, and the bill of costs



       1 TEX. PENAL CODE ANN. § 21.08 (West 2018). A person commits an offense under
this statute “if he exposes his anus or any part of his genitals with intent to arouse or
gratify the sexual desire of any person, and he is reckless about whether another is
present who will be offended or alarmed by his act.” Id.
improperly charged him for certain fees. We will modify the judgment and affirm it as

modified.


                                      Background


      Appellant was charged by an information that alleged he “with intent to arouse or

gratify the sexual desire of the defendant . . . expose[d] his genitals, and the defendant

was reckless about whether another was present who would be offended or alarmed by

his act in that [he] masturbated in front of a window with the blinds open while facing

outside, and [G.V.] was present and offended or alarmed by said act of exposure[.]”


      At trial before a jury, evidence showed the events that led to appellant’s

prosecution occurred at the residence he occupied with his fiancée, located some twenty

feet adjacent the residence of G.V. and her family. The State presented the testimony of

G.V. and her husband, and of an investigating detective, along with the audio recording

of appellant’s interview with the detective.    Appellant did not testify, but presented

testimony by his fiancée.    Both sides presented photographs showing the relative

locations of their residences and of the window.


      Windows on one side of appellant’s residence directly face the front door of G.V.’s

home. The blinds on appellant’s windows were normally closed and were closed as usual

early on the morning of the offense when G.V.’s husband left for work. G.V. walked out

the front door with her young son about an hour later, following the schedule she had kept

for three or four years. She testified she and appellant were on “kind of the same work

schedule and we would both leave pretty much at the same time.”            That morning,

however, she saw appellant in his home. The window blinds “were all the way up.” The


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interior lights were on and she could “very clearly” see appellant at the window. He was

naked, standing slightly “catty-cornered” to the window, and had his erect penis in his

hand, masturbating.     She told the jury appellant was “standing there and he was

masturbating at me and my son.”


       G.V. covered her son’s eyes.      She agreed she was shocked, offended, and

alarmed by appellant’s actions. After speaking with her husband by phone, she reported

the incident to police. In appellant’s interview by the detective, he initially denied the

entire incident but eventually admitted he was masturbating. However, he maintained the

exposure was “an accident.” Appellant’s defensive theory at trial was that the exposure

was a mistake or an accident. To rebut appellant’s theory, the State introduced, over

appellant’s objection, evidence of his three prior convictions for indecent exposure.


       The jury found appellant guilty. The trial court heard punishment evidence and

assessed punishment of confinement in the county jail for 180 days. Appellant filed a

motion for new trial that was overruled by operation of law. This appeal followed.


                                         Analysis


Admission of Evidence of Prior Convictions under Rule 403


       In his first issue, appellant contends the trial court erred by admitting evidence of

his three prior convictions for indecent exposure because the evidence was more

prejudicial than probative.


       We review the trial court’s rulings on the admissibility of evidence for an abuse of

discretion. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007) (citation omitted).

A trial court abuses its discretion when its decision lies outside the zone of reasonable

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disagreement. Id. (citation omitted). A court does not abuse its discretion unless it has

“acted without reference to any guiding rules and principles.” Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1990). The trial court’s ruling will be “upheld if it is

reasonably supported by the record and is correct under any theory of law applicable to

the case.” Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008).


       Under Rule of Evidence 404(b), evidence of uncharged misconduct may be

admissible to show the absence of mistake or accident. TEX. R. EVID. 404(b); Johnston

v. State, 145 S.W.3d 215, 222 (Tex. Crim. App. 2004). “Sometimes a defendant admits

the conduct, but raises a defense of ‘it was an accident,’ or ‘it was inadvertent.’” Id.

(citations omitted). The State is allowed to rebut such a defense of “accident” or “mistake”

“with evidence of other conduct by the defendant which tends to show that his actions on

those occasions, and hence on this occasion as well, were not mistaken, inadvertent, or

accidental.” Id. (citations omitted).


       In this case, the record does not clearly explain what appellant meant by his

assertion his exposure was accidental.2 As appellant’s counsel raised with the jury his

accident defense, he referred to the definition of the culpable mental state of

recklessness, pointing to the needed proof that appellant was “aware of but consciously

disregarded” the risk he would be observed.3 In the language of the information, appellant

thus was asserting he was not reckless about whether another person was present who

would be offended or alarmed by his act. Evidence of extraneous misconduct may be


       2The Penal Code, of course, does not contain a defense to criminal conduct of
“accident.” Rogers v. State, 105 S.W.3d 630, 637 (Tex. Crim. App. 2003). There is no
suggestion in the record that appellant believed his conduct was in any sense involuntary.
       3   See TEX. PENAL CODE § 6.03(c) (West 2018) (defining recklessness).

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admitted for the purpose of showing the defendant’s culpable mental state of

recklessness. Prescott v. State, 123 S.W.3d 506, 515 (Tex. App.—San Antonio 2003, no

pet.).


         Rule of Evidence 403, however, allows for the exclusion of otherwise relevant

evidence when its probative value is substantially outweighed by a danger of unfair

prejudice, confusing the issues or misleading the jury. TEX. R. EVID. 403. A trial court

addressing a rule 403 objection must balance (1) the inherent probative force of the

proffered item of evidence along with (2) the proponent’s need for that evidence against

(3) any tendency of the evidence to suggest decision on an improper basis, (4) any

tendency of the evidence to confuse or distract the jury from the main issues, (5) any

tendency of the evidence to be given undue weight by a jury that has not been equipped

to evaluate the probative force of the evidence, and (6) the likelihood that presentation of

the evidence will consume an inordinate amount of time or repeat evidence already

admitted. Brock v. State, 275 S.W.3d 586, 590 (Tex. App.—Amarillo 2008, pet. ref’d)

(citing Casey, 215 S.W.3d at 880).


         At trial, appellant’s theory of the evidence did not deny that he exposed his genitals

to G.V. in the manner she testified. In his opening statement, appellant’s counsel told the

jury, however, that his exposure was “an accident,” and “an embarrassing mistake.” In

response to appellant’s objection to admission of evidence of his prior convictions, and

after argument and discussion among the parties and the court, the court concluded the

prior-conviction evidence was admissible, saying it is “clearly allowed to rebut the issue

of it being an accident.” Later during the State’s case, the jury heard the audio recording

of the investigator’s interview of appellant, in which he said the incident was “an accident.”


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       In his appellate argument, appellant concedes that his prior convictions for

indecent exposure have probative force on the issue of the absence of accident or

mistake, and that the prosecution had some need for the evidence. He argues, however,

that the State’s need was not surpassing because it could have established his

knowledge of G.V.’s workday schedule and because the circumstances, including the

time of day and the open blind, “might have established absence of accident or mistake.”

He contends also the State over-reached by offering three prior convictions when one

would have sufficed to make its point, that there was danger the jury would convict merely

on the basis of propensity, and that the “rather perfunctory limiting instruction” contained

in the court’s charge4 did not equip the jury to evaluate the probative force of the prior

convictions and thus gave rise to a great risk the evidence was given undue weight.




       4   The trial court provided to the jury in open court the following limiting instruction:

              You remember in opening argument it was—there was mention
       that—that it was a mistake, it was an accident that this happened. These
       three convictions are to refute those defense strategies that it was not a
       mistake or an accident. And you will be given a specific instruction in the
       jury charge regarding how you can use this evidence in your deliberations.

       The jury charge included the following charge:

               The Defendant is on trial solely on the charge contained in the
       information. In reference to evidence, if any, that the Defendant has
       previously participated in recent transactions or acts other than, but similar
       to that which is charged in the information in this case, you are instructed
       that you cannot consider such other transactions or acts, if any, for any
       purpose unless you find and believe beyond a reasonable doubt that the
       Defendant participated in such transactions or committed such acts, if any.
       Even then, you may only consider the same for the purpose of determining
       intent, knowledge or to rebut the issue of accident if it does and for no other
       purpose.

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       We find the trial court reasonably could have evaluated the rule 403 factors

differently, and we see no abuse of discretion in the court’s implicit conclusion the

probative value of appellant’s prior convictions was not substantially outweighed by a

danger of unfair prejudice. The evidence appellant identifies might have enabled the

State to argue it was improbable appellant was unaware of the risk he would be seen, but

it lacked evidence directly rebutting appellant’s assertion his exposure was “accidental”

rather than reckless. We conclude both that the prior convictions carried strong probative

value to rebut appellant’s contention his conduct was not reckless, and that the State had

a significant need for the evidence. After the court ruled on their admissibility, appellant

stipulated to the three prior convictions, so the presentation of the evidence to the jury

took little time. No details of the previous convictions were related to the jury, so there

appears little danger the jury was distracted from its consideration of the facts before it.

We see in appellant’s argument to the contrary merely a recognition that the prior

convictions strongly rebutted appellant’s defense.


       Taking all factors into consideration, we find the trial court did not abuse its

discretion in finding the evidence of the three prior convictions admissible under rule 403.

We resolve appellant’s first issue against him.


Ineffective Assistance of Counsel


       In his second issue, appellant argues his attorney rendered ineffective assistance

of counsel by opening the door to the admission of appellant’s three prior indecent

exposure convictions.




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       To prevail on his ineffective assistance claims under Strickland v. Washington, 466

U.S. 668 (1984), appellant must satisfy both prongs of its test. First, he must prove that

his counsel’s conduct was objectively deficient. Pate v. State, No. 07-15-00397-CR, 2017

Tex. App. LEXIS 8447, at *13 (Tex. App.—Amarillo Sep. 6, 2017, pet. ref’d) (citing Ex

parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004)). To evaluate such a contention,

we determine whether counsel was acting as “a reasonably competent attorney” would

under the circumstances. Id. (citing Strickland, 466 U.S. at 687). Appellant has the

burden of proof and must overcome a “strong presumption that counsel’s performance

fell within the wide range of reasonable professional assistance.” Id. (citation omitted).

This highly deferential review is employed to avoid “the distorting effect of hindsight.” Id.

(citation omitted). Accordingly, appellant is required to show his attorney made “errors so

serious that counsel was not functioning as the counsel guaranteed the defendant by the

Sixth Amendment.” Id. (citation omitted).


       Further, even if appellant can demonstrate his counsel’s actions were objectively

deficient, he must prove that the deficient performance prejudiced his defense. Pate,

2017 Tex. App. LEXIS 8447, at *13 (citation omitted). He must establish “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (citation omitted). The Supreme Court has

defined this “reasonable probability” as a “probability sufficient to undermine confidence

in the outcome.” Id. (citations omitted). Without some effect of the challenged conduct

on the reliability of the trial process, the Sixth Amendment guarantee is generally not

implicated. Id. at *13-14 (citing United States v. Cronic, 466 U.S. 648, 656 (1984)).




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       Appellant’s issue is predicated on the notion that his prior convictions were made

admissible only by statements his counsel made in his opening. Counsel’s remarks

contained the following:

              It was an accident, a human miscalculation, a human endeavor in
       forgetfulness. It hadn't happened before, hasn't happened since. It was not
       a crime. It was an embarrassing mistake.


       As we have discussed in our disposition of appellant’s first issue, however, the

prior convictions were admissible to rebut appellant’s defense that he lacked the culpable

mental state of recklessness. Counsel’s remarks did not initiate appellant’s contention

that his exposure was accidental. As noted, appellant told the investigating officer during

his recorded police interview that it was “an accident.” Although the State argued to the

trial court, counsel had opened the door to the evidence by his assertion “it hadn’t

happened before,” we cannot conclude on this record that admissibility of the prior

convictions turned on that remark.       In his discussion of his first issue, appellant

acknowledges that the prior convictions were admissible under Rule 404(b) to rebut his

“accident” and “mistake” assertions.


       An assertion of ineffectiveness of counsel must be firmly founded in the record.

Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Evaluating such a claim,

we look to the totality of the representation. Pate, 2017 Tex. App. LEXIS 8447, at *14

(citations omitted).   We conclude the record in this case demonstrates neither that

counsel’s representation of appellant fell outside the range of reasonable professional

assistance, nor that the outcome of his trial would have been different but for counsel’s

asserted error.




                                            9
       We resolve appellant’s second issue against him.


Fees and Costs


       In appellant’s last issue, he challenges certain fees and costs assessed in the

court’s judgment. The State agrees modification is necessary in some respects.


       Appellant first challenges the assessment of court-appointed attorney’s fees. A

trial court has authority to order reimbursement of the fees of court-appointed counsel

and investigative costs if the court determines that a defendant has financial resources

enabling him to offset, in part or in whole, the costs of the legal services provided.

Hindman v. State, No. 07-10-00243-CR, 2012 Tex. App. LEXIS 5017, at *16-17 (Tex.

App.—Amarillo June 22, 2012, pet. ref’d) (mem. op., not designated for publication) (citing

TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Mayer v. State, 274 S.W.3d 898, 901 (Tex.

App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010); Perez v. State, No.

07-10-0147-CR, 2011 Tex. App. LEXIS 5724, at *18 (Tex. App.—Amarillo July 26, 2011,

pet. dismissed) (mem. op.) (not designated for publication)).


       But “[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.” Hindman, 2012 Tex. App. LEXIS

5017, at *16 (citing TEX. PENAL CODE ANN. art. 26.04(p)). “[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.” Id. at *16-17 (citing Mayer,

309 S.W.3d at 556). Therefore, the record must provide a factual basis supporting a

determination the defendant is capable of repaying the assessed attorney’s fees and


                                             10
investigative costs. Id. at *17 (citations omitted). Unless the record shows an indigent

defendant’s financial status has changed, the evidence will not support assessment of

court-appointed attorney’s fees. Parum v. State, No. 18-00128-CR, 2018 Tex. App.

LEXIS 9050, at *8 (Tex. App.—Amarillo Nov. 5, 2018, no pet.) (mem. op., not designated

for publication) (citing Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013)).


      There is no evidence in the record of appellant’s ability to pay the assessed fee for

his court-appointed attorney. Both appellant and the State argue the judgment should be

modified. We agree and so will modify the judgment to delete the order that defendant

pay attorney’s fees.


      Second, appellant challenges the amount assessed for the peace officer’s fee for

summoning witnesses. Appellant asserts the judgment should be reformed to reflect a

single fee. The State acknowledges the fee amount assessed by the judgment is too

great, but argues the $5 fee applies to each witness summoned. See TEX. CODE CRIM.

PROC. ANN. art. 102.011(3). We agree with the State and so will modify the judgment to

reduce the assessment.


      Finally,   appellant   also   challenges   two   other fees,    one   assessed    for

Commitment/Release and the other for the Judicial Fund.              After considering his

arguments and the State’s response, we will make no modifications to these fees.


      We sustain appellant’s third issue in part and overrule it in part.




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                                      Conclusion


      The trial court’s Judgment of Conviction by Jury is modified by adding the following

provision at page 2 beneath the heading “Furthermore, the following special findings or

orders apply”: “As used herein the term ‘court costs’ does not include court-appointed

attorney’s fees, and does not include Summon Witness – Peace Officer fees in a total

amount greater than $40.00.”


      The trial court is ordered to direct the Randall County District Clerk to issue an

amended Bill of Cost in this case in accordance with the modified judgment.


      As modified, the judgment is affirmed.




                                                       James T. Campbell
                                                          Justice



Do not publish.




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