
                                          NO. 07-10-0147-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL A

                                             JULY 26, 2011








                                  ENRIQUE JARAMILLO PEREZ, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE





                           FROM THE 54TH DISTRICT COURT OF McLENNAN COUNTY;

                            NO. 2009-483-C2; HONORABLE MATT JOHNSON, JUDGE





Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                          MEMORANDUM OPINION


      Appellant, Enrique Jaramillo Perez, was convicted following  a  jury  trial  of  one  count  of
aggravated sexual assault of a child[1] and three counts  of  indecency  with  a  child.[2]   At  the
punishment phase of his trial, the jury found two enhancement allegations to  be  true  and  assessed
his sentence at  life  imprisonment  on  each  count.   The  trial  court  ordered  Count  I  to  run
concurrently with any other sentence, Count II to run consecutive  to  Count  I,  Count  III  to  run
consecutive to Count II, and Count IV to run consecutive to Count III.  In  three  points  of  error,
Appellant asserts the trial court erred by (1) admitting evidence of an extraneous offense  to  rebut
the defense of fabrication, (2) admitting evidence of an extraneous offense when the probative  value
of the evidence was substantially outweighed by its prejudicial effect,  and  (3)  admitting  hearsay
testimony by two witnesses regarding statements made by the victim.  Subject  to  a  modification  of
the judgment in Count I pertaining to the assessment of costs of  court,  discussed  hereinbelow,  we
affirm.


                                              Background


      On April 8, 2009, a McLennan County Grand Jury returned a four count indictment  alleging  that
(1) on or about February 2, 2009, Appellant knowingly caused the penetration of the sexual  organ  of
D.P. (his granddaughter) with his finger when D.P. was younger than seventeen years old and  not  his
spouse; (2) on or about February, 2, 2009, Appellant, with  the  intent  to  arouse  or  gratify  his
sexual desire, intentionally and knowingly engaged in  sexual  contact  with  D.P.  by  touching  her
breast when D.P. was younger than fourteen years old and not his spouse; (3) on or about  August  10,
2008, Appellant, with the intent to arouse or gratify his sexual desire, intentionally and  knowingly
engaged in sexual contact with D.P. by touching her breast when D.P. was younger than fourteen  years
old and not his spouse; and (4) on or about August 20, 2008, Appellant with the intent to  arouse  or
gratify his sexual desire, intentionally and  knowingly  engaged  in  sexual  contact  with  D.P.  by
touching her breast when D.P. was younger than fourteen years old and not his spouse.[3]


      In March 2010, a two-day jury trial was held.  The State's first witness was Peggy Sheppard,  a
Sexual Assault Nurse Examiner who examined D.P. on February 2, 2009.  Sheppard  testified  that  D.P.
told her that her grandfather, Appellant, had been touching her in a sexual  way  for  a  year.   She
testified D.P. told her that, on February 2, 2009, Appellant picked her up from school and drove  her
to Walmart where he rubbed her vagina and touched her  breasts.   On  cross-examination,  Appellant's
counsel inquired whether D.P. was mad at her grandfather and Sheppard testified that  D.P.  told  her
that she "got mad at grandpa Monday."[4]


      D.P. testified that she was fourteen years old at the time of trial.  Her mother  was  Marizela
Welsch and her grandfather was Appellant.  She testified that, when she was in the fifth  grade,  her
grandfather took care of her and her brother and sisters.   She  didn't  like  living  at  his  house
because he touched her in her bedroom more than once but less than  five  times.   She  testified  he
would wake her up at night when she was sleeping and touch her breast and  vagina.   She  would  tell
him to leave her alone but he would continue touching her underneath her clothes.  He tried  to  give
her money to let him touch her, but she refused.  She once woke up to find Appellant on  top  of  her
and told him to get off her.  He ignored her, unzipped his pants, and tried to  take  her  pants  off
while attempting to penetrate her with his penis.  When her panties were off, his attempts hurt  her.
 Ultimately, she was able to push him off.


      D.P. also testified that, after she moved to another  house,  Appellant  picked  her  up  after
school and took her to Walmart.  While they were in his car, Appellant rubbed her  vagina  under  her
clothes with his finger.  She became angry and told  him  to  stop  but  he  continued  rubbing.   He
threatened to hit her if she didn't allow him to continue.  He also touched and squeezed  her  breast
underneath her clothes.  Afterwards, he took her to a sporting goods store, bought her some  athletic
shoes and told her he had bought her something so he could touch her again.  She was sad, afraid  and
scared.  When he took her to a cemetery to teach her to drive, he touched her on the upper  thigh  of
her leg while someone else was in the car.  She testified that the first adults she  told  about  the
sexual abuse were her mother and Shaundale Garcia.  Afterwards, her mother  called  the  police  and,
after the police arrived, they took her to the hospital.


      On cross-examination, Appellant's counsel asked D.P. whether it  was  "possible  Appellant  was
trying to wake you up or that you  were  dreaming?"   He  also  asked  the  following  questions,  in
pertinent part:


      Q:  Okay.  Do you recall giving a statement to Ms. Clark, a detective?


      A.  Yes.


      Q.  Did you tell Ms. Clark that you told your mom lots of times and nothing happened?


      A.  Yes, but --


      Q.  Why would you tell Ms. Clark something that wasn't the truth?


      A.  I don't know really.


                                              *   *   *


      Q.  Okay.  And you're telling us today that when you spoke to Ms. Clark that you lied  to  her;
      is that correct?


      A.  Yes.


      Q.  Okay.  And you can tell us why you would lie to somebody, a police detective?


      A.  Because I really didn't want to tell her.


                                              *   *   *


      A.  I didn't want to tell her all the details.


                                              *   *   *


      Q.  . . . But you were out late one night, correct?


      A.  Yes.


      Q.  And when you went home that's when your mother was having a talk with you and  that's  when
      you brought this up about your grandfather doing these things?


      A.  Yes.


      Q.  Okay.  Did you make these things up about your grandfather so you wouldn't get in  trouble?




      A.  No.  They asked me about it.  I didn't just tell them.


      Q.  Okay.  When you say "they asked me," who?


      A.  [Shaundale Garcia] and my mom.


      Marizela Welch then testified that, on February 7, 2009 in the early  morning  hours,  she  and
Garcia were concerned that D.P. might be staying out late with boys and had a conversation with  D.P.
about good and bad touching.  During the conversation, D.P. told them that someone had been  touching
her in a way that they shouldn't.  When  they  asked  who  was  touching  her,  D.P.  identified  her
grandfather.[5]  After their conversation, Welch immediately called the police.  The  police  arrived
and spoke first to Welch and then to D.P.  The officers next took D.P. to the hospital where she  was
examined by Sheppard.


      Welch also testified that she and her children lived with her father in  2007  and  2008  while
she was having financial difficulties.  When she worked nights, her father stayed with the  children.
 She later moved out to live with her grandmother in 2008.  She also testified that, on  February  2,
2009, D.P. went with her father to Walmart.


      Officer Brad Skaggs testified that on February, 7, 2009, he responded to a complaint  regarding
an aggravated sexual assault at Welch's residence.  When he spoke to D.P., she was twelve  years  old
and it was difficult for her to talk about the incident.  She was upset and  withdrawn.   During  the
State's direct examination, Skaggs testified that D.P. identified her grandfather as the  person  who
sexually abused her.[6]


      Martha Perez (Perez), Appellant's daughter, testified that she had lived with her father  until
she was ten years old.  She testified that, when she was inside her bedroom asleep,  Appellant  would
come in and touch her body on her breast and vagina.[7]  She also testified that he would  drive  her
out to the country and touch her breast and vagina there also.  Although she reported  the  incidents
to the police when she was fourteen years old, she did not hear  back  from  them.   The  State  then
rested.  Appellant called one witness -- D.P. and then rested.


      Following closing arguments, the jury convicted Appellant on all four counts in the  indictment
and assessed his sentence.  Thereafter, the trial court issued four judgments, one for each count  in
the indictment.  In its judgment on Count I of the indictment, the trial court ordered Appellant  pay
$8,655.00 in court costs, including $4,615.00 in court-appointed attorney's fees, $1,590.00 in court-
appointed investigator  fees,  and  $2,010.00  in  court-appointed  interpreter  fees.   This  appeal
followed.


                                              Discussion


      Appellant asserts that the  trial  court  erred  by  permitting  the  State  to  introduce  the
testimony of Appellant's daughter, Martha  Perez,  regarding  a  sexual  assault  by  Appellant  that
occurred years earlier.  He next asserts that the probative value of Perez's testimony  was  exceeded
by its prejudicial effect.  Lastly, Appellant contends  that  the  trial  court  erred  by  admitting
hearsay testimony by Welch and Officer Skaggs that D.P. had identified Appellant as  the  person  who
sexually abused her.


      In response, the State contends that Perez's testimony was  admissible  because  Appellant  had
asserted the defense of fabrication and Appellant did not object to Perez's  testimony  at  trial  on
the basis of the probative value of the testimony being outweighed by its prejudicial effect.  As  to
the alleged error in admitting  hearsay  testimony,  although  the  State  admits  that  the  hearsay
exception it argued at trial was invalid, it asserts that Welch's hearsay  testimony  was  admissible
as part of D.P.'s outcry.


                                          Standard of Review

      Because the trial  courts  are  in  the  best  position  to  decide  substantive  admissibility
questions, we review a trial court(s ruling on admissibility under an abuse of  discretion  standard.
Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). Under this  standard,  an  appellate  court
should not reverse a trial court whose ruling was within the zone of reasonable disagreement.   State
v. Mechler, 153 S.W.3d 435 (Tex.Crim.App. 2005).

      Further, error in the admission of  evidence  is  non-constitutional  error  and  is  therefore
subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure.   Potier  v.
State, 68 S.W.3d 657, 666 (Tex.Crim.App. 2002); Johnson v. State, 967 S.W.2d 410, 417  (Tex.Crim.App.
1998).  To obtain a reversal of a conviction  based  on  error  in  the  admission  of  evidence,  an
appellant must  establish  that  the  trial  court's  ruling  was  outside  the  zone  of  reasonable
disagreement and that the error affected his or her substantial rights.[8]   Tex.  R.  App.  44.2(b);
Potier, 68 S.W.3d at 666.  In considering harm, we view the entire record to  determine  whether  the
error had more than a slight influence  on  the  verdict.   Potter  v.  State,  74  S.W.3d  105,  113
(Tex.App.--Waco 2002, no pet.).

                                       Issue One -- Rule 404(b)

      Rule 404(b) provides that evidence of other crimes, wrongs,  or  acts  is  not  admissible  "to
prove the character of a person in order to show action in conformity therewith"; however, it may  be
admissible for other purposes, such as proof  of  motive,  opportunity,  intent,  preparation,  plan,
knowledge, or identity.  Tex. R. Evid. 404(b).  "This list is illustrative, not  exhaustive."   Berry
v. State, 233 S.W.3d 847, 858 (Tex. Crim.App. 2007).

      Rebuttal of a defensive theory is also one of the permissible purposes for which  evidence  may
be admitted under Rule 404(b).  Williams v. State, 301 S.W.3d 675, 687  (Tex.Crim.App.  2009),  cert.
denied, ___ U.S. ___, 130 S.Ct. 3411, 177 L.Ed.2d 326 (2010).  Thus, whether Perez's  testimony  that
Appellant had sexually  assaulted  her  was  admissible  turns  on  "whether  the  extraneous-offense
evidence has noncharacter-conformity relevance by, for  example,  rebutting  a  defensive  theory  or
making less probable defensive evidence that undermines an  elemental  fact."   Bass  v.  State,  270
S.W.3d 557, 563 n.8 (Tex.Crim.App. 2008).  Specifically, such evidence may be admissible when  it  is
introduced to rebut the defensive theories of fabrication and retaliation.  Id.

      Appellant asserts Perez's testimony was unnecessary because he did not assert  the  defense  of
fabrication but merely sought to establish that D.P.'s statements were inconsistent.   During  trial,
however, Appellant attempted to establish that D.P. fabricated her allegations because  she  was  mad
at Appellant or to avoid being punished for  having  stayed  out  past  her  curfew.   As  a  result,
Appellant did more than merely impeach D.P.'s  credibility.   Through  the  responses  elicited  from
D.P., as well as other witnesses, Appellant opened the door to extraneous-offense evidence  to  rebut
the defensive theories of fabrication and retaliation.

      Having reviewed the entire record, whether or not  Perez's  testimony  is  admissible  for  the
noncharacter-conformity purpose of  rebutting  Appellant's  defensive  theories  of  fabrication  and
retaliation is at least within the zone of reasonable disagreement.  See Dennis v. State, 178  S.W.3d
172, 177-78 (Tex.App.--Houston [1st Dist.] 2005, pet. ref'd).  Appellant's first issue is overruled.

                                  Issue Two -- Unfairly Prejudicial

      Once a trial court rules that uncharged misconduct evidence is not barred  under  Rule  404(b),
the opponent of the evidence may nevertheless object under Rule 403.[9]  Casey v. State,  215  S.W.3d
870, 879 (Tex.Crim.App. 2007).   To  preserve  a  complaint  for  our  review,  Appellant  must  have
presented to the trial court a timely request, objection, or motion that stated a specific  Rule  403
objection.  Tex. R. App. P. 33.1(a).  See Wenger v. State, 292 S.W.3d 191, 202 (Tex.App.--Fort  Worth
2009, no pet.) (citing Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.  1998)  (op.  on  reh'g)).
At trial, Appellant objected to the admissibility of Perez's testimony stating only that he  did  not
open the door to her testimony.  He made no objection based on Rule 403, and he did not  assert  that
the testimony was unduly prejudicial.[10]  Therefore, Appellant preserved  nothing  for  our  review.
Id.  Appellant's second issue is overruled.

                                   Issue Three -- Hearsay Testimony

      At trial, Appellant objected to testimony by Welch and Officer Skaggs, regarding statements  by
D.P. that Appellant had sexually abused  her,  as  being  hearsay.   In  both  instances,  the  State
asserted the testimony was not hearsay but statements  of  identification[11]  and  the  trial  court
overruled Appellant's objections.  In its brief, the State concedes that Rule 801(e)(1)(C) is  not  a
legitimate basis upon which the trial court could admit those statements; however,  it  asserts  that
Welch's testimony is nevertheless admissible under article 38.72 of the Code  of  Criminal  Procedure
as an outcry by a victim of child abuse.[12]

      Although the trial court's basis for admitting Welch's testimony may have  been  erroneous,  we
must sustain the trial court's ruling if it can be sustained on any theory of law applicable to  this
case.  Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Blackwell v. State, 193  S.W.3d  1,
9 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd).[13]  Here, Welch's testimony was admissible as  an
outcry statement because the evidence reflects she was  the  first  person  to  whom  D.P.  described
sexual abuse by her grandfather.[14]

      Assuming without deciding that the trial court's ruling as to Officer  Skaggs's  testimony  was
erroneous, we must determine whether his testimony  affected  Appellant's  substantial  rights.   See
Couchman v. State, 3 S.W.3d 155, 160 (Tex.App.--Fort Worth 1999, pet.  ref'd).   Here,  Sheppard  and
Welch had previously testified to the same matter as  Officer  Skaggs,  i.e.,  D.P.  told  them  that
Appellant was the person who sexually abused her.  D.P. also identified Appellant as the  person  who
sexually assaulted her.  Therefore, Officer Skaggs's  statement  is  merely  cumulative  of  properly
admitted testimony on the same issue.

      Moreover, after Officer Skaggs  testified  to  D.P.'s  hearsay  statement,  D.P.  testified  in
Appellant's case-in-chief where she was under oath and subject  to  cross-examination.   Furthermore,
the jury had the opportunity to observe her demeanor and to judge her  credibility.   Thus,  even  if
the trial court erred in allowing Officer Skaggs to testify about D.P.'s out-of-court  statement,  we
must disregard the error because it could not have  affected  Appellant's  substantial  rights.   See
Matz v. State, 21 S.W.3d 911, 912 (Tex.App.--Fort Worth 2000, pet. ref'd) (no reversible error  where
videotape essentially repeated the victim's testimony); Couchman, 3  S.W.3d  at  161  (no  reversible
error where subsequent hearsay statement had already been admitted on  the  same  issue  by  a  prior
witness); Thompson v. State, 665 S.W.2d 188, 190 (Tex.App.--Houston [1st  Dist.]  1984,  pet.  ref'd)
(no reversible error where complainant who made out-of-court statement was  in  court,  testified  on
direct and cross-examination, and was available for future examination). See also  Tex.  R.  App.  P.
44.2(b).  Appellant's third issue is overruled.

                      Court-Appointed Attorney’s Fees and Investigative Expenses

      We also note an issue not raised by Appellant regarding  the  assessment  of  attorney's  fees,
investigative expenses, and interpreter fees.[15]  The written judgment as to Count  I  reflects  the
assessment of court-appointed attorney's fees and investigative expenses totaling $6,205.00 as  court
costs.  In order to assess attorney's fees, including investigative expenses, as costs  of  court,  a
trial court must determine that the defendant has financial resources that enable him  to  offset  in
part or in whole the costs of legal services provided.[16]  Here, the clerk's  record  reflects  that
the trial court found Appellant indigent and unable to afford the cost of legal  representation  both
before trial in March 2010, and again after trial.[17]  Unless a material  change  in  his  financial
resources occurs, once a criminal defendant has been found to be indigent, he or she is  presumed  to
remain indigent for the remainder of the proceedings.  Tex.  Code  Crim.  Proc.  Ann.  art.  26.04(p)
(West Supp. 2010).  Therefore, because there is evidence of  record  demonstrating  that  immediately
following the rendition  of  judgment  Appellant  was  indigent  and  qualified  for  court-appointed
counsel, we presume that his financial status has not changed and that  he  is  indigent.   Perez  v.
State, 323 S.W.3d 298, 307 (Tex.App.--Amarillo 2010, pet. ref'd).

      Furthermore, prior to requiring a defendant to offset any of the costs of  his  legal  services
and expenses, the record must reflect some factual  basis  to  support  the  determination  that  the
defendant is capable of paying  attorney’s  fees.   Id.;  Barrera  v.  State,  291  S.W.3d  515,  518
(Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009,  no
pet.).

      We note that the record in this case  does  not  contain  a  pronouncement,  determination,  or
finding that Appellant had financial resources that enable him to pay all or any part of the fees  or
expenses paid his court-appointed counsel, and we are unable to find any evidence to support  such  a
determination.  Therefore, we conclude that  the  order  to  pay  attorney’s  fees  and  investigator
expenses as court costs and notice of withdrawal  of  money  from  Appellant's  inmate  account  were
improper.  See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010).  No  trial  objection  is
required to challenge the sufficiency of the evidence regarding the defendant's ability to pay.   Id.


      When the evidence does not  support  an  order  to  pay  court-appointed  attorney's  fees  and
expenses, the proper remedy is to correct the order.  Id. at 557; see Watkins v.  State,  333  S.W.3d
771, 781-82 (Tex.App.--Waco 2010, pet. ref'd); Perez, 323 S.W.3d at 307.   Accordingly,  we  conclude
that the judgment as to Count I should not have assessed the  sum  of  $6,205.00  in  court-appointed
attorney's fees and investigator expenses as costs of court.

                                 Court-Appointed Interpreter Expenses

      The trial court's judgment also assesses, as costs of court,  the  sum  of  $2,010.00  for  the
services of a court-appointed interpreter.  While an accused is entitled to  the  appointment  of  an
interpreter if it is determined that he or a witness does not understand the  English  language,  and
while the interpreter is entitled to be compensated for his  or  her  services,  nothing  in  article
38.30 of the Texas Code of Criminal Procedure authorizes a trial court to assess  the  cost  of  that
interpreter against the accused.  Furthermore, the miscellaneous provisions of  Chapter  102  of  the
Texas Code of Criminal Procedure, pertaining to costs to be paid by defendants, do not authorize  the
assessment of such expenses.  Finding no statutory authority for the  assessment,  we  conclude  that
the sum of $2,010.00 in court-appointed interpreter's fees should not have been assessed as costs  of
court.

                                              Conclusion

      The judgment as to Count I is corrected to reflect court costs of $450.00  and,  as  corrected,
that judgment is affirmed.  The judgments as to Counts II, III, and IV are affirmed.

                                        Patrick A. Pirtle
                                              Justice



Do not publish.

-----------------------
[1]See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) (West 2011).

[2]See Tex. Penal Code Ann. § 21.11(a) (West 2011).


[3]The State subsequently sought to increase the punishment range for the indicted offenses  to  that
of a habitual felon by  giving  notice  of  three  prior  felony  convictions  --  two  prior  felony
convictions for DWI offenses in 2002 and a felony conviction for  unlawfully  carrying  a  weapon  on
licensed premises in 1982.

[4]Dr. Ann Sims, a medical director  for  the  Children's  Advocacy  Center,  testified  that  D.P.'s
physical examination was consistent with her history.  Blake Goertz, DPS Crime  Lab  --  DNA  Section
Supervisor, testified that DNA samples taken from D.P. during the SANE examination did not  show  any
foreign DNA.

[5]Appellant's counsel objected to Welch's testimony as to what D.P. said on the  basis  of  hearsay.
The State asserted the statement was not hearsay because it was a  statement  of  identification  and
the trial court overruled the objection.

[6]Appellant's counsel lodged a hearsay objection to this testimony.  Again, the State  asserted  the
statement was not hearsay because it was a statement of identification and the trial court  overruled
the objection.



[7]Prior to her testimony, the State alerted the trial court that she would  be  testifying  and  the
substance of her testimony.  Appellant's counsel objected that he had not opened  the  door  to  such
testimony and the incidents were fifteen to  sixteen  years  ago.   The  trial  court  overruled  the
objection based upon the State's arguments that the  evidence  was  intended  to  rebut  the  defense
theory of fabrication.

[8]"A substantial right is affected when  the  error  had  a  substantial  and  injurious  effect  or
influence in determining the jury's verdict."  Potter v. State, 74 S.W.3d  105,  113  (Tex.App.--Waco
2002, no pet.) (quoting King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)).



[9]Rule 403 of the Texas Rules of Evidence provides that relevant evidence may be  excluded  "if  its
probative value is substantially outweighed by the danger  of  unfair  prejudice,  confusion  of  the
issues, or misleading the jury, or by considerations of undue  delay,  or  needless  presentation  of
cumulative evidence."  Tex. R. Evid. 403.

[10]To the extent Appellant asserts that Perez's testimony was unduly prejudicial because the  sexual
assault occurred twenty-four years earlier, we  believe  the  decision  as  to  whether  or  not  the
probative value of that testimony was outweighed by its prejudicial effect was  within  the  zone  of
reasonable disagreement.  See Newton v. State, 301 S.W.3d 315, 318 (Tex.App.--Waco 2009, pet.  ref'd)
(sexual assault of stepdaughter by stepfather that occurred  twenty-five  years  before  the  offense
charged not too remote in time under Rule 404(b)).

[11]A statement that is "one of identification of a person made after perceiving the person"  is  not
considered hearsay.  Tex. R. Evid. 801(e)(1)(C).

[12]Article 38.72 of the Code of Criminal Procedure permits outcry statements  by  victims  of  child
abuse to be admitted during trial, despite the hearsay rule, if the statement was made by  the  child
against whom the offense was allegedly committed and the statement was made to the  first  person  to
whom the child made the statement about the offense.  See Tex. Code Crim. Proc. Ann. art. 38.072 (  1
(1), ( 2 (1) & (2) (West 2005).

[13]"Usually, when evidence is admitted for the wrong  reason,  but  it  is  admissible  for  another
reason, appellate courts do not find reversible error."  Deleon v. State, 126  S.W.3d  210,  214  n.3
(Tex.App.--Houston [1st Dist.] 2003, pet. ref'd).

[14]To qualify as proper outcry statements, the child must have  described  the  alleged  offense  in
some discernible way and must have  more  than  generally  insinuated  that  sexual  abuse  occurred.
Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990).  See Sims  v.  State,  12  S.W.3d  499,  500
(Tex.App.(Dallas 1999, pet. ref(d); Hayden v. State, 928  S.W.2d  229,  231  (Tex.App.(Houston  [14th
Dist.] 1996, pet. ref(d).



[15]Courts of appeals may review unassigned error in criminal cases, particularly  where  the  record
discloses error that should be addressed in the interest of justice.  Hammock v.  State,  211  S.W.3d
874, 878 (Tex.App.--Texarkana 2006, no pet.).  Where, as here, the error appears on the face  of  the
judgment and does not involve the merits of the criminal trial,  but  instead  solely  addresses  the
clerical correctness of the judgment, we find that the interest of justice  allows  that  we  address
the issue.

[16]Article 26.05 of the Texas Code of Criminal Procedure provides  that  "counsel  in  a  noncapital
case . . . appointed to represent a defendant under this code shall be reimbursed for reasonable  and
necessary expenses, including expenses for investigation and mental health and other experts."   Tex.
Code Crim. Proc. Ann. art. 26.05(d) (West Supp. 2010).  Article 26.05 further  states,  in  pertinent
part, as follows:

      If the court determines that a defendant has financial resources that enable him to  offset  in
      part or in whole the costs of legal services, including any expenses and costs, the court shall
      order the defendant to pay during the pendency of the charges or, if convicted, as court  costs
      the amount that it finds defendant is able to pay.

Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2010).

[17]Appellant has been represented by court-appointed counsel throughout the  proceedings  below  and
on appeal.  In addition, when the trial court approved an authorization to  expend  additional  funds
for an investigator and also appointed counsel for appeal  in  March  2010,  the  trial  court  found
Appellant indigent.  Further, in each notice of withdrawal of money from Appellant's  inmate  account
incorporated into each of the four judgments for each count of the  indictment  for  which  Appellant
was convicted; see Randolph v. State, 323 S.W.3d 585, 587 (Tex.App.--Waco 2010, no pet.),  the  trial
court found "that Defendant is unable to pay the costs [$8,655.00]  and  that  the  funds  should  be
withdrawn from the inmate account."



