Affirmed as Modified and Memorandum Opinion filed December 13, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00928-CR

                       JIMMY JOE GARCIA, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 75459

                 MEMORANDUM                      OPINION


      Appellant Jimmy Joe Garcia was convicted by a jury of aggravated
kidnapping. See Tex. Penal Code Ann. § 20.04. He appeals his conviction in two
issues in which he challenges (1) the sufficiency of the evidence to support his
conviction; and (2) the trial court’s order directing him to pay attorney’s fees. We
conclude that there is sufficient evidence to support appellant’s conviction. We
further conclude that the trial court’s order to pay attorney’s fees is erroneous. We
modify the judgment to delete the portion that requires appellant to pay attorney’s
fees, and affirm the judgment as modified.

                     FACTUAL AND PROCEDURAL BACKGROUND

      At the time of the event in question, the complainant was a daily
methamphetamine user. The complainant and her boyfriend bought their
methamphetamine from Debra Falco. On the night of the event, appellant, Falco,
the complainant’s roommate, and the complainant’s boyfriend were at the
complainant’s house smoking methamphetamine. Falco and appellant had driven a
rental car to the complainant’s house. Falco’s car was full of miscellaneous items
including boxes, bags, and a weed eater. The complainant drove to Falco’s house
and offered to put the weed eater in the complainant’s truck because Falco was
unable to fit the weed eater into her car. The complainant and her boyfriend also
wanted to buy more drugs from Falco.

      At   Falco’s    house,   the   complainant   purchased   $30.00    worth   of
methamphetamine. After the complainant purchased the drugs, Falco forced the
complainant to sign a handwritten document purporting to give the complainant’s
truck to Falco. Falco claimed that the complainant had stolen money from her, and
that title to the truck was repayment for the stolen money. Falco threatened the
complainant with an expandable baton. Appellant was also present and threatened
the complainant with a handgun. Falco took the complainant’s keys and left to
move the truck. The complainant felt threatened and tried to leave the house, but
the only unlocked door was blocked by appellant.

      Falco came back into the house and forced the complainant to take seven
unknown pills by threatening her with the baton. Appellant was still threatening the
complainant with the handgun. Appellant and Falco then bound the complainant’s
hands and placed a gag in her mouth. A cover was also placed over the
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complainant’s head. Appellant walked the complainant outside and placed her in
the passenger seat of the rental car.

      The Lake Jackson Police Department had Falco’s house under surveillance
the night of the event in question because it was known for narcotics traffic. Lake
Jackson patrol officer, Skye Wingo, began following appellant as he drove away
from Falco’s home, and initiated a traffic stop a short distance away. The
complainant heard appellant say he was going to “catch a case” as he pulled the
cover off of the complainant’s head, and moved the gun from his lap to a space
between the console and the driver’s seat. Appellant threatened to kill the
complainant if she told the police officer about Falco and him. As appellant pulled
the car over, he put a plastic bag of methamphetamine in his mouth.

      Wingo stepped up to the driver’s side window after the car stopped. Wingo
noticed appellant, the driver, was extremely nervous, fidgeting, and grinding his
teeth. Wingo testified that, in his experience, grinding teeth is indicative of an
individual under the influence of a stimulant such as methamphetamine. Wingo
recognized the passenger in the car because he had met the complainant during a
previous traffic stop outside another house known for narcotics traffic. Wingo
asked appellant and the complainant for identification. The complainant was able
to respond, but appeared to have something hanging around her neck. Wingo
noticed that the complainant appeared extremely intoxicated or sick. Wingo saw a
safe under the complainant’s feet in the floorboard of the passenger seat. Officers
searched the safe, and learned that it contained another handgun, the holder for the
baton, duct tape, and ammunition.

      After appellant got out of the car, another officer informed Wingo that
appellant appeared to be chewing on something, possibly destroying or tampering
with evidence. Several police officers tried to get appellant to spit out what he had

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in his mouth. When they were unsuccessful, they placed appellant in handcuffs.
Wingo then walked to the passenger side of the car and asked the complainant to
step out. She explained that she could not get out because she was tied. Officer
Kristi Carlson stepped in, took the complainant out of the car, and placed a blanket
around her. After removing the complainant from the car, Wingo found a handgun
and an expandable baton in between the driver’s seat and the console.

      When Carlson walked up to the passenger side of the car, she saw a jacket
over the complainant’s hands. When Carlson removed the jacket she saw that the
complainant’s hands were bound behind her back. Carlson testified that the
complainant appeared “terrified.” Carlson took the complainant to her patrol unit
and asked her what happened. The complainant said she was afraid that appellant
would kill her. The complainant also reported that Falco took the complainant’s
purse, wallet, identification, and truck. She also told Carlson that Falco made her
take unknown pills, bound her wrists, and placed a gag in her mouth. The
complainant told Carlson that appellant pulled a handgun on her and forced her
into the car. The complainant also told Carlson that appellant threatened to kill her
as the car was being stopped. When the complainant began to lapse in and out of
consciousness, she was taken to a hospital by ambulance.

      The complainant testified that she did not consent to being tied up and
driven away by appellant. She felt threatened by appellant’s display of the handgun
and the baton. The complainant’s movement was restricted and she was unable to
get away from appellant and Falco. On cross-examination, the complainant
admitted she and her boyfriend had engaged in “bondage sex,” and that she had
discussed bondage sex with Falco in the past.

      Appellant testified that he is a freelance tattoo artist who went to Lake
Jackson to do tattoos. On the day of the event appellant and Falco spent the day

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“riding around,” with Falco shoplifting and appellant sketching tattoo work.
Appellant said that he would act as a decoy in stores while Falco shoplifted. That
night the complainant, the complainant’s roommate, and the complainant’s
boyfriend came to Falco’s house with items they had stolen to exchange for drugs.
The group left Falco’s house and went to the complainant’s house, where they
smoked methamphetamine. Appellant testified that the complainant agreed to trade
sexual favors for tattoo work. Appellant testified that the complainant asked him to
tie her up to have bondage sex. Appellant claimed that he was in Falco’s house
using more drugs when Falco walked the complainant to the car. Appellant got in
the car intending to drive to a park where he planned to “fool around a little bit,”
then return to the complainant’s house and start working on the tattoos. In addition
to methamphetamine, appellant took a pill called “RV 5,” and used an inhaler
called “Rush.” Appellant described the RV 5 pill as a sexual stimulant.

      Appellant testified he had no knowledge of the items in the safe. Falco put
the key to the safe on his keyring as he was leaving Falco’s house. Appellant
admitted the baton was his, but denied ownership or knowledge of the handgun.
According to appellant, he did not know who put the handgun in the driver’s seat
of the car. Appellant admitted that he had pleaded guilty to aggravated assault with
a deadly weapon, and at the time of the kidnapping arrest, appellant was on parole
from this charge.

      The jury found appellant guilty of aggravated kidnapping and assessed
punishment at confinement for forty years in the Institutional Division of the Texas
Department of Criminal Justice.




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                                   DISCUSSION

      A. The evidence is sufficient to prove that appellant intended to restrain
the complainant without her consent.
      In his first issue appellant argues the evidence is insufficient to support the
jury’s guilty verdict. Appellant argues the jury was not rationally justified in
convicting appellant based on the complainant’s testimony because the
complainant was under the influence of drugs at the time of the events.

      When evaluating the legal sufficiency of the evidence, we “consider all of
the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and reasonable inferences therefrom, a rational fact finder
could have found the essential elements of the crime beyond a reasonable doubt.”
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Reconciliation of
conflicts in the evidence is within the jury’s discretion. Losada v. State, 721
S.W.2d 305, 309 (Tex. Crim. App. 1986). Inconsistencies in the evidence are
resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000). We do not engage in a second evaluation of the weight and credibility
of the evidence, but only ensure the jury reached a rational decision. Muniz v.
State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Tatum v. State, 431 S.W.3d
839, 841 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

      A person commits the offense of aggravated kidnapping “if he intentionally
or knowingly abducts another person and uses or exhibits a deadly weapon during
the commission of the offense.” See Tex. Penal Code Ann. § 20.04(b). For
purposes of chapter 20, “abduct” means to restrain a person with intent to prevent
her liberation. Tex. Penal Code Ann. § 20.01(2). “Restrain” means to restrict a
person’s movements without consent, so as to interfere substantially with the
person’s liberty, by moving the person from one place to another or by confining

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the person. Restraint is “without consent” if it is accomplished by force,
intimidation, or deception. Tex. Penal Code Ann. § 20.01(1)(A). “Restraint” is the
actus reus requirement of “abduction,” while the specific intent to prevent
liberation is the mens rea requirement. Laster v. State, 275 S.W.3d 512, 521 (Tex.
Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d).

      Appellant argues that his testimony conflicted with the complainant’s
account as to whether the complainant consented to being restrained. Testimony at
trial showed that appellant restrained the complainant at gunpoint, tied her hands
behind her back, placed a gag in her mouth, and a cover over her head. The
complainant was then walked to the car at gunpoint by appellant and Falco and
placed into the car, after which appellant drove away from the house. Police-
officer testimony corroborated the complainant’s testimony. Officer Wingo
testified that when he walked to the passenger side of the car he saw that the
complainant’s hands were bound behind her back. Officer Carlson had to cut off
the tie that bound the complainant’s hands. Wingo also found a handgun and a
baton in the front seating area of the car.

      Appellant argues the evidence is insufficient to support his conviction
because the complainant’s testimony was based on a memory that was heavily
influenced by drug use on the day of appellant’s arrest. Appellant does not
challenge that the complainant was restrained, but challenges her testimony that
the restraint was without consent. Appellant admits he was using drugs at the time
of the event. Appellant attacks the credibility of the complainant’s testimony, not
its sufficiency; determinations of witness credibility are solely within the province
of the jury. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). The
complainant’s testimony, in conjunction with the officers’ testimony, is sufficient

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to show that appellant intended to restrain the complainant without her consent.
See Criff v. State, 438 S.W.3d 134, 138 (Tex. App.—Houston [14th Dist.] 2014,
pet. ref’d) (holding that inconsistent statements as to details of the offense and
complainant’s advanced age were not sufficient to overturn conviction as witness
positively identified appellant as her attacker).

         The complainant’s testimony was sufficient to prove beyond a reasonable
doubt that appellant knowingly abducted the complainant without her consent, and
that appellant used a deadly weapon during the commission of the offense. The
jury is the exclusive judge of the credibility of witnesses, the weight to be given to
testimony, and the jury is the exclusive reconciler of conflicts in the evidence.
Marines v. State, 292 S.W.3d 103, 106 (Tex. App.—Houston [14th Dist.] 2008,
pet. ref’d). The jury found that the complainant was a credible witness despite
conflicting testimony from appellant that the complainant consented to being
restrained. Viewing all the evidence adduced at trial in the light most favorable to
the verdict, we conclude that a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. We overrule appellant’s first
issue.

      B. The record does not support the trial court’s order that appellant
pay attorney’s fees.
         In his second issue appellant argues the evidence is insufficient to support
the trial court’s order that he pay attorney’s fees for the defense attorney appointed
to him. The State agrees that appellant should not be ordered to pay attorney’s fees
in this proceeding and requests that we modify the judgment accordingly.

         The trial court has the authority to order the reimbursement of appointed
attorney’s fees “[i]f the judge determines that a defendant has financial resources
that enable the defendant to offset in part or in whole the costs of the legal services

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provided.” See Tex. Code Crim. Proc. Ann. art. 26.05(g). The 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 fees. Mayer v. State,
309 S.W.3d 552, 556 (Tex. Crim. App. 2010). We review the evidence in the light
most favorable to the judgment when deciding whether the record contains legally
sufficient evidence to support these elements. Id. at 557. Absent sufficient
evidence, the defendant may not be ordered to pay attorney’s fees. See West v.
State, 474 S.W.3d 785, 795 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

      Appellant was found to be indigent before trial. By law, he was presumed to
have remained indigent for the remainder of the proceedings unless a material
change in his financial circumstances occurred. See Tex. Code Crim. Proc. Ann.
art. 26.04(p). Our record does not reveal any evidence of changed financial
circumstances, and the State concedes that there are none. Because there is no
evidence that appellant has the financial resources or ability to pay for the costs of
his appointed trial counsel, the reimbursement order is erroneous and should be
deleted. We sustain appellant’s second issue.

                                   CONCLUSION

      We modify the trial court’s judgment to delete the portion of the judgment
that requires appellant to pay attorney’s fees, and we affirm the judgment as
modified.


                                       /s/       Marc W. Brown
                                                 Justice



Panel consists of Chief Justice Frost and Justices McCally and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).

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