                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00232-CR
                           ____________________

                    BRYAN CHANCE MCBEE, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________            ______________

                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-04-03591-CR
________________________________________________________            _____________

                          MEMORANDUM OPINION

      Bryan Chance McBee appeals from his third-degree felony conviction for

assault on a family member. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West

Supp. 2013). The jury found McBee guilty and assessed punishment at eight years

in prison. McBee was convicted of assaulting T.P., a 47 year old female.

      McBee argues on appeal that the evidence was legally insufficient to support

his conviction, and that the trial court abused its discretion in assessing attorney

fees against him. We conclude the evidence was legally sufficient to support his

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conviction, but we otherwise modify the judgment to delete the assessment of

attorney fees against McBee, and we affirm the judgment as modified.

                          EVIDENCE PRESENTED AT TRIAL

Testimony of T.P.

      T.P. testified that she and McBee had been in an “on and off” relationship

for about a year and a half, and that they were both homeless. T.P. explained that

on or about April 19, 2012, she was at Chad’s bar in Montgomery County. T.P.

stated that McBee was angry at her for allegedly dating someone else. McBee

confronted T.P. at Chad’s bar, and McBee began using profanity and falsely

accusing her of things.

      T.P. was upset and she ran out of the bar. McBee texted her and told her he

had stolen her money. T.P. left and went to a secluded wooded area where McBee

stayed in a tent and waited for him. She planned to talk with him and get her

money back. When McBee arrived late that evening, McBee and T.P. argued

again. McBee threatened T.P. and her adult children. At one point T.P. “took off

running” and McBee pursued her but T.P. tripped and fell. When she fell, McBee

stated: “Oh, look, you broke your arm. Now I am going to have to kill you.”

McBee then stepped on her elbow, grabbed her wrist, yanked her off the ground,

threw her into trees, kicked her, and threw her into a wooden bedframe in one of

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the tents. McBee called her names, slapped her, and choked her with his hand.

During the assault, McBee even called T.P.’s family and told them he had her, and

then McBee put his phone on speaker phone so they could hear him assaulting her.

The assault lasted hours. When T.P. awakened around 5:30 or 6:00 a.m. the next

morning, McBee was still with her. He asked T.P. if she remembered what

happened the night before. In order to get away, T.P. answered, “Yes. And I am so

sorry.” McBee was concerned T.P. would turn him into the police, and T.P.

assured McBee that she would not. She told McBee that she loved him and that

they could “go to like McDonald’s or something like that and [she] would slip and

fall and then he could sue them” and get money. McBee went back to sleep, and

T.P. escaped to a restaurant near the wooded area where the tents were located.

      T.P. stated that because she was in pain, embarrassed, and scared of McBee,

she initially told the 911 operator that she fell. Later, she told Deputy Holden that

McBee had assaulted her. She also told the investigating officer she wanted to

press charges against McBee. T.P. testified that McBee had also assaulted her once

before on November 16, 2010, when she and McBee were dating. In the earlier

incident, McBee broke both of her wrists. A judgment convicting McBee of the

2010 assault/family violence was admitted into evidence.




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Testimony from T.P.’s Adult Son

      T.P.’s adult son testified that he had received a call from McBee during the

assault, and McBee was threatening T.P.’s family. T.P.’s son could hear T.P.

begging for help while McBee was hitting her and laughing at her. T.P.’s son

testified that he did not call law enforcement or come to her aid because he was

unaware of T.P.’s and McBee’s location.

Testimony from Paramedic

      Clayton Rosencranz, a paramedic for Montgomery County Hospital District,

testified that he responded to a call in the early morning hours of April 20, 2012,

from a local restaurant. When Rosencranz arrived at the restaurant, bystanders at

the restaurant directed him to an emotionally distraught female sitting in a booth

inside the restaurant. The female, T.P., was crying hard, breathing rapidly, and

holding her arm. T.P. initially told Rosencranz that she injured her arm by tripping

and falling. Based on T.P.’s visible injuries and emotional state, Rosencranz did

not think her story “add[ed] up.” When Rosencranz began to ask specifics about

how her injuries occurred, T.P. “began to cry even worse” and told Rosencranz

that she had been assaulted by her boyfriend.

      T.P. informed Rosencranz that McBee, her boyfriend, was across the street

in the woods, and because Rosencranz was concerned for her safety, he locked the

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restaurant door and called for law enforcement through dispatch. T.P.’s injuries, as

observed by Rosencranz, were an obvious closed-elbow deformity, blood in her

right eye, a bruised jaw, a bruised neck, and bruising to her entire back. She was in

extreme pain and Rosencranz was concerned that she had sustained possible rib or

spinal fractures.

Testimony from Azwell and Holden

      Deputy Chris Azwell with the Montgomery County Sheriff’s Office also

testified. Azwell was dispatched to the restaurant. He interacted briefly with T.P.

prior to her transport to the hospital. According to Azwell, T.P. had either a broken

or dislocated arm, “[d]eep, dark, purple bruising” on her sides and back,

lacerations and scratches on her upper body, and dried blood around her mouth.

T.P. told Azwell that McBee was the person who had injured her, and she provided

Azwell details of McBee’s location, which was a wooded area approximately three

or four hundred yards from the restaurant. Azwell and three other officers looked

for McBee and found him in a tent in the woods. McBee appeared startled when he

saw the officers and said, “What did she do?” McBee was detained, escorted to a

patrol car, and given his Miranda rights. Azwell did not observe any injuries to

McBee.




                                         5
      Deputy Lance Holden with the Montgomery County Sheriff’s Office met

with T.P. at the hospital, and he described his interview of T.P. for the jury. She

was cooperative but hesitant to speak with Holden. Holden stated that T.P. was

certain that McBee would kill her the next time she came into contact with him.

Holden photographed T.P.’s injuries, and the photographs were admitted into

evidence at trial. Holden testified that he thought T.P.’s wounds appeared fresh,

and that T.P. was in “[s]evere pain.” Holden described her primary injuries as

those to her elbow and her ribs. He testified that he saw handprints on her throat

prior to the medical staff’s placement of a neck brace on her neck. She also

appeared to have broken blood vessels in her eyes which Holden believed were

consistent with being strangled.

Testimony from Defense Witness

      Matthew Butcher testified for the defense. Butcher and McBee had worked

together for seven years. He worked with McBee earlier on the day of the assault

and went with him to Chad’s bar. Butcher explained that after they were at the bar

for ten or fifteen minutes, T.P. called the bar and told Butcher that she had fallen

over a bicycle and broken her arm. She was upset and said she needed Butcher to

bring McBee home. Butcher took McBee immediately to where he lived in the

woods, and then Butcher went home.

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                                LEGAL SUFFICIENCY

      In issue one, McBee contends the evidence is legally insufficient to support

his conviction. He specifically argues that the testimony was insufficient to allow a

jury to reasonably infer that he was not acting in self-defense. As requested by

McBee, the jury charge included a self-defense instruction.

      It is the defendant’s burden to produce some evidence to support a claim of

self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Upon

producing such evidence, the State has the burden of persuasion to disprove the

defense. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). The

State is not required to produce evidence to refute the claim but is required to

prove its case beyond a reasonable doubt. Id. at 913. The issue of self-defense is a

fact issue to be determined by the jury, which is free to accept or reject the

defensive issue. Id. at 913-14. A jury’s verdict of guilt is an implicit finding

rejecting a defendant’s self-defense theory. Id. at 914.

      We review all of the evidence in the light most favorable to the verdict and

determine if a rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). Because the

State carries the burden of persuasion to disprove self-defense beyond a reasonable

                                          7
doubt, we review a challenge to the sufficiency of the evidence supporting a jury’s

rejection of a claim of self-defense under only the Jackson standard. Saxton, 804

S.W.2d at 914.

      In reviewing the evidence, we give deference to the jury to resolve any

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from the facts. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007). We treat direct and circumstantial evidence equally: “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.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the

testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991).

      A person commits the offense of assault if he intentionally, knowingly, or

recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1).

Although usually a Class A misdemeanor, the offense is elevated to a third-degree

felony if it is committed against a person whose relationship with the defendant is

described in sections 71.0021(b) (dating), 71.003 (family), or 71.005 (household)

of the Texas Family Code, and if the defendant has been previously convicted of

                                          8
an assault involving family violence. See Tex. Penal Code Ann. § 22.01(b)(2)(A);

see also Tex. Fam. Code Ann. §§ 71.0021(b), 71.003, 71.005 (West 2014).

      The jury heard T.P.’s testimony regarding the assault. She explained to the

jury the violent assault by McBee—he grabbed her, stepped on her elbow, slapped

her, threw her into trees and into the bedframe, choked her, and threatened to kill

her. The jury heard law enforcement’s testimony that the wounds appeared “fresh”

and that T.P. appeared scared of McBee. The jury saw photographs of T.P.’s

injuries and heard T.P.’s son’s testimony of the telephone call from McBee during

the assault. Evidence of McBee’s prior assault against T.P. was also presented at

trial, along with the 2010 judgment convicting him of assault/family violence. The

only evidence of self-defense is McBee’s videotaped comments while he was

detained by police. In the video, McBee states that T.P. went “ballistic[,]”and

kicked and hit him, so he slapped and pushed her. There is no indication in the

record before us that McBee received any injury during the incident. The jury was

not required to believe McBee’s version of what transpired that day. After viewing

the evidence in the light most favorable to the verdict, a rational jury could have

found the essential elements of the offense beyond a reasonable doubt and also

could have found against McBee on his self-defense claim. We overrule issue one.




                                        9
                                 ATTORNEY FEES

      In issue two, McBee argues the trial court abused its discretion in assessing

attorney fees against him, because he is indigent. The State concedes the judgment

should be modified to delete the award of attorney fees.

      Under article 26.05 of the Texas Code of Criminal Procedure, the trial court

has authority to order reimbursement of fees of an appointed attorney if the court

determines that the defendant has financial resources that enable him to offset in

part or in whole the costs of legal services provided to him. Tex. Code Crim. Proc.

Ann. art. 26.05(g) (West Supp. 2013). Article 26.04 provides that the judges of

courts trying criminal cases by local rule shall adopt and publish written

countywide procedures for timely and fairly appointing counsel for an indigent

defendant in the county, who is arrested for, charged with, or taking an appeal from

a conviction of a misdemeanor punishable by confinement or a felony. See Tex.

Code Crim. Proc. Ann. art. 26.04(a) (West Supp. 2013). McBee states in his brief

that his first trial counsel was appointed by the trial court, and the State does not

dispute that contention. McBee was living in a tent in the woods at the time of his

arrest. He was appointed counsel for his appeal, and the trial court granted his

motion for a free transcript on appeal. See Mayer v. State, 274 S.W.3d 898, 901

(Tex. App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010);

                                         10
Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.) (If

a court determines that a defendant is indigent, then he 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.).

      The sum of $7,312.50 in attorney fees was taxed against McBee in the

judgment. There is no evidence in the record that McBee’s financial circumstances

materially changed either after the appointment of counsel and before the trial of

the case, or after the appointment of appellate counsel for appeal of the case. See

generally Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013); In re Daniel,

396 S.W.3d 545, 547-50 (Tex. Crim. App. 2013). We therefore sustain issue two

and modify the judgment to delete that portion of the judgment requiring that

McBee pay attorney fees in the amount of $7,312.50. Otherwise, the judgment is

affirmed as modified.

      AFFIRMED AS MODIFIED.


                                                       _________________________
                                                          LEANNE JOHNSON
                                                                Justice

Submitted on February 26, 2014
Opinion Delivered April 9, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.
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