Opinion filed April 23, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                               No. 11-13-00127-CR
                                     __________

                 DONALD JAMES MYART, JR., Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                      On Appeal from the 380th District Court
                                Collin County, Texas
                        Trial Court Cause No. 380-80194-2013


                       MEMORANDUM OPINION
       Donald James Myart, Jr., appeals his jury conviction for assault of a public
servant. The trial court assessed his punishment at confinement in the Institutional
Division of the Texas Department of Criminal Justice for a term of ten years. The
trial court also assessed payment of Appellant’s court-appointed attorney’s fees
against Appellant in the trial court’s judgment as a part of court costs. In two issues
on appeal, Appellant argues that the trial court erred when it refused to submit
definitions of “voluntary encounter” and “detention” in the jury charge and that the
trial court abused its discretion when it assessed payment of court-appointed
attorney’s fees against Appellant. We modify the trial court’s judgment to delete the
assessment of court-appointed attorney’s fees against Appellant, and as modified,
we affirm.
                                  Background Facts
      On September 17, 2010, Officer Roy Jenkins of the Dallas Police Department
was dispatched to an apartment complex for a “civil standby.” Angela Jensen, the
apartment manager, received a call about a couple in an upstairs apartment. The
couple had been fighting, and the girlfriend was attempting to remove her things
from the apartment.
      Upon his arrival, Officer Jenkins was informed by Jensen about the
disturbance. Officer Jenkins intended to go to the upstairs apartment to find out from
the boyfriend what had transpired. Appellant, who is a downstairs neighbor, said
that he wanted to go to the upstairs apartment prior to Officer Jenkins doing so.
Appellant also said that he knew the boyfriend. Appellant was attempting to go
upstairs when Officer Jenkins “told him not to go upstairs because [Officer Jenkins]
needed to speak first with the resident upstairs.”       Officer Jenkins asked for
Appellant’s name, and Appellant refused to give his name. Appellant also refused
to give Officer Jenkins his identification.
      Sergio Gonzalez, the maintenance supervisor at the apartment complex, saw
Officer Jenkins walk toward Appellant. He said that Officer Jenkins attempted to
reach out and grab Appellant. Gonzalez saw Appellant push Officer Jenkins off the
stairs. Officer Jenkins warned Appellant, “I’m going to mace you if you don’t come
down.” Officer Jenkins then sprayed Appellant in the face with pepper spray.


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Gonzalez testified that Appellant “bull rushed [Officer Jenkins], grabbed him from
his belt, picked him up, and slammed him.” Appellant picked up Officer Jenkins
approximately five feet off the ground and threw him onto concrete. Officer Jenkins
lost consciousness when he hit the concrete. Gonzalez saw Appellant hit Officer
Jenkins before Gonzalez pushed Appellant off Officer Jenkins. Jensen then grabbed
Officer Jenkins and dragged him to his police car. Backup officers arrived shortly
thereafter.   Because of the injuries that he sustained, Officer Jenkins has no
recollection of how he was injured.
      Appellant requested a directed verdict because “the State has not proven that
this was a valid stop, a valid detention. It doesn’t look like it was a detention of any
sort. It looked like it went straight from a voluntary encounter to pepper spraying.”
The trial court denied the motion, stating that “whether there was a valid detention
or arrest, it’s a question of fact and that the jury should be charged on those issues
of fact.” However, the trial court subsequently did not submit an instruction
pertaining to illegally obtained evidence in the jury charge for the following reason:
“I believe that the question before the jury is not whether evidence was illegally
obtained because of an unlawful detention. I think the question before the jury is
whether the use [of] force in this case was justified or not.” See TEX. CODE CRIM.
PROC. ANN. art. 38.23 (West 2005).
                                       Analysis
      In his first issue, Appellant contends that the trial court erred by overruling
his request to include definitions for “voluntary encounter” and “detention” in the
jury charge. By seeking to have these terms defined, it appears that Appellant sought
to rely on the law of search and seizure to argue that Officer Jenkins’s actions were




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not legally justified.1 Appellant acknowledged that he assaulted Officer Jenkins, but
he argued to the jury that he was justified in doing so because Officer Jenkins’s
actions were unlawful.
        In reviewing a jury-charge issue, we must first determine whether error exists
in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If
error is found, then we analyze that error for harm. Middleton v. State, 125 S.W.3d
450, 453–54 (Tex. Crim. App. 2003). If an error was properly preserved by
objection, reversal will be necessary if the error was not harmless. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985). To obtain reversal for jury-charge
error, Appellant must have suffered actual harm, not merely theoretical harm.
Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721
S.W.2d 348, 352 (Tex. Crim. App. 1986).
        Appellant was charged under section 22.01 of the Texas Penal Code. TEX.
PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West 2011). Pursuant to the Penal Code,
the jury charge instructed the jury that “[o]ur law provides that a person commits an
offense if he intentionally, knowingly, or recklessly causes bodily injury to a person
he knows is a public servant while the public servant is lawfully discharging an
official duty.” The charge also included instructions on the law of self-defense and
the law of use of force by a peace officer. See id. § 9.31(a), (c). The charge did not


        1
          There are three distinct types of police-citizen interactions: (1) consensual encounters that do not
implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of
limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3)
arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable
cause. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013); State v. Woodard, 341 S.W.3d 404,
410–11 (Tex. Crim. App. 2011). A consensual encounter “takes place when an officer approaches a citizen
in a public place to ask questions, and the citizen is willing to listen and voluntarily answers.” Crain v.
State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2013). “An encounter is no longer consensual when an officer,
through physical force or a showing of authority, has restrained a citizen’s liberty.” State v. Castleberry,
332 S.W.3d 460, 466 (Tex. Crim. App. 2011).



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include the terms “voluntary encounter” and “detention.” However, Appellant asked
the trial court to provide the jury with the definitions of these terms. In making this
request, Appellant did not provide a specific definition for these terms to the court.
The trial court denied the request.
         If a term is statutorily defined, the trial court must submit the statutory
definition in the charge to the jury. Willis v. State, 802 S.W.2d 337, 342 (Tex.
App.—Dallas 1990, pet. ref’d). However, if a word or phrase has not been statutorily
defined, the trial court is not required to provide specific definitions. Smith v. State,
297 S.W.3d 260, 275 (Tex. Crim. App. 2009); Willis, 802 S.W.2d at 342. In the
absence of a statutory definition, words are to be taken and understood in their
common and ordinary meanings. Gardner v. State, 306 S.W.3d 274, 302 (Tex.
Crim. App. 2009); Smith, 297 S.W.3d at 275. Jurors are presumed to know and
apply such common and ordinary meanings. Gardner, 306 S.W.3d at 302–03.
         The terms “voluntary encounter” and “detention” are not statutorily defined.
Accordingly, the trial court was not required to define either phrase in the charge to
the jury. Gardner, 306 S.W.3d at 302; Smith, 297 S.W.3d at 275. Furthermore,
these terms were not material to the jury’s deliberations because these terms were
not used in the jury charge. Thus, the trial court did not err when it refused
Appellant’s request for these terms to be defined. We overrule Appellant’s first
issue.
         In his second issue, Appellant contends that the trial court abused its discretion
in assessing Appellant’s court-appointed attorney’s fees against Appellant as part of
court costs when Appellant had previously been found indigent and no evidence was
presented suggesting that his financial situation had changed. We note at the outset
that the State has agreed with Appellant’s contention that the assessment of
attorney’s fees should be struck from the trial court’s judgment.


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         The record establishes that court-appointed counsel represented Appellant at
trial and on appeal. As noted by the Court of Criminal Appeals in Wiley v. State,
410 S.W.3d 313 (Tex. Crim. App. 2013):
         The necessary procedure for ordering formerly indigent defendants to
         pay attorney fees is governed by Texas Code of Criminal Procedure
         article 26.05(g). Under this article, once a defendant is declared
         indigent, a trial court may order a defendant to pay for the costs of
         “legal services provided”—but only if it first determines that the
         “defendant has financial resources that enable him to offset in part or
         in whole the costs[.]” A defendant who has previously been found
         indigent is presumed to remain indigent unless there is a “material
         change” in his financial status, and in the absence of any indication in
         the record that his financial status has in fact changed, the evidence will
         not support an imposition of attorney fees.
410 S.W.3d at 317 (internal citations omitted). Thus, court-appointed attorney’s fees
cannot be assessed against a defendant who has been determined to be indigent
unless there is proof and a finding by the trial court that the defendant is no longer
indigent. Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013); Mayer v.
State, 309 S.W.3d 552, 555–56 (Tex. Crim. App. 2010). In this case, the record
contains no such proof or finding. Accordingly, we sustain Appellant’s second
issue.
         The trial court’s judgment does not specify a dollar amount of court-appointed
attorney’s fees assessed against Appellant. Instead, the judgment provides as
follows: “It is further ORDERED that the cost to Collin County for the payment of
this defendant’s court-appointed attorney, if any, is taxed against this defendant as
court cost. The District Clerk is granted leave to amend the court cost to reflect this
amount without the necessity of a further order.” Pursuant to our disposition of
Appellant’s second issue, we modify the trial court’s judgment to delete this
provision.



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                                   This Court’s Ruling
      The judgment of the trial court is modified to delete: “It is further ORDERED
that the cost to Collin County for the payment of this defendant’s court-appointed
attorney, if any, is taxed against this defendant as court cost. The District Clerk is
granted leave to amend the court cost to reflect this amount without the necessity of
a further order.” As modified, the judgment of the trial court is affirmed.




                                                     JOHN M. BAILEY
                                                     JUSTICE


April 23, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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