                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-13-00385-CR
                                 ________________________

                     WILLIAM WALTER YOUNGSTROM, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 355th District Court
                                     Hood County, Texas
              Trial Court No. CR 12355; Honorable Ralph H. Walton, Jr., Presiding


                                            June 9, 2014

                                MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, William Walter Youngstrom, was convicted by a jury of the offense of

delivery of a controlled substance, methamphetamine, in an amount of more than four

grams but less than two hundred grams. He was sentenced to twenty-seven years

confinement and assessed a $2,500 fine.1 Appellant was also ordered to pay court


       1
            See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (W EST 2010). An offense under this section
is a first degree felony.
costs of $2,730.35 which includes $2,294.35 in court-appointed attorney’s fees. By this

appeal, Appellant asserts (1) the trial court erred by denying his motion to suppress text

messages obtained by an illegal search of his cellphone and (2) his counsel was

ineffective for not objecting earlier and demanding a pretrial hearing on the admissibility

of the text messages. We modify the trial court’s judgment to delete the enhancement

findings as well as the order to pay $2,294.35 in court-appointed attorney’s fees and

affirm as modified.


                                      BACKGROUND


      In December 2012, an indictment was filed alleging that, on or about September

8, 2012, Appellant intentionally and knowingly delivered four grams or more but less

than two hundred grams including any adulterants and dilutants, of a controlled

substance, to-wit: methamphetamine, by actually transferring the drug to Ray Miller.

The indictment contained four enhancement paragraphs alleging four prior felony

convictions, i.e., two for possession of a controlled substance, one for theft and one for

evading detention. The indictment also included a second count alleging the offense of

possession of a controlled substance of less than one gram including adulterants and

dilutants. As to the enhancements, no plea was ever taken, the enhancements were

never presented to the jury, and no finding was ever made. As to the second count in

the indictment, following the assessment of sentence, it was voluntarily dismissed by

the State. Prior to trial, Appellant filed a Motion to Suppress [his] Written and Oral

Statements made while he was under arrest or following his request for an attorney.

There is no evidence or transcription of a pretrial suppression hearing in the record.



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       At trial, Ray Miller, a narcotics investigator for Hood County Sheriff’s Office,

testified that, in September 2012, he was told by an informant that he could purchase

drugs if he called Appellant’s telephone number. Miller texted Appellant’s number and

negotiated the price of a quarter ounce of methamphetamine—$550.                Miller also

negotiated the transaction and arranged its location at a halfway point between the west

side of Fort Worth and Granbury—a Tiger Mart in Cresson. Appellant texted Miller that

he would arrive in a black 2010 Ford Taurus.


       The transaction occurred as the parties had negotiated in their texts. Miller

arrived at the Tiger Mart and awaited the Ford Taurus. The Taurus arrived and pulled in

front of Miller’s car.   Miller walked up to the Taurus and entered through the rear

passenger door.      Two persons were in the front seat—the driver and Appellant.

Appellant identified himself as “Will” and almost in a continual motion, turned around

and displayed a baggie containing methamphetamine. Miller handed Appellant $550,

and Appellant handed him the baggie. Miller then gave a visual bust signal, officers

approached the Taurus, and Appellant was arrested.


       After Appellant’s arrest, Miller located Appellant’s activated cellphone in the front

seat of the Taurus. On his way to the station, Miller accessed the cellphone’s text

messaging system and took pictures of the texting correspondence between himself

and Appellant. No passcode or password was necessary. The texts on Appellant’s

phone were the same as the texts on Miller’s phone. Both sets of texts were admitted

into evidence.     Appellant’s attorney asserted the admission of Appellant’s text

messages was illegal because Miller’s search was warrantless. Miller testified it would

take approximately an hour and a half to obtain a warrant and he was concerned the

                                             3
texts would be erased. The trial court overruled Appellant’s objection. William Watt, a

narcotics investigator who assisted Miller, corroborated Miller’s testimony.


      At the conclusion of the State’s case, Appellant re-urged his motion to suppress

and was overruled. The jury found Appellant guilty of the charges in the indictment.

The trial court’s Judgment of Conviction by Jury sentenced Appellant to twenty-seven

years confinement, assessed a $2,500 fine and ordered Appellant to pay $2,294.35 in

court-appointed attorney’s fees as court costs. This appeal followed.


      ISSUE ONE—MOTION TO SUPPRESS


      Assuming, without deciding, the trial court erred in admitting Appellant’s text

messages, we find beyond a reasonable doubt that any error did not contribute to

Appellant’s conviction or punishment. TEX. R. APP. P. 44.2(a). That is, any error was

harmless.


      In applying the “harmless error” test, our primary question is whether there is a

“reasonable possibility” that the error might have contributed to the conviction. Mosley

v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526

U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Our analysis does not focus on the

propriety of the outcome of the trial; instead, we calculate as much as possible the

probable impact on the jury in light of the existence of other evidence. Westbrook v.

State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944, 121

S.Ct. 1407, 149 L.Ed.2d 349 (2001). In our analysis, we evaluate the entire record in a

neutral, impartial and even-handed manner. Clay v. State, 240 S.W.3d 895, 904 (Tex.



                                            4
Crim. App. 2007) (citing Neder v. U.S., 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d

35 (1999)). See Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).


       Appellant’s text messages aside, other evidence at trial, including Miller’s and

Watt’s testimony, establishes the circumstances leading up to and during Appellant’s

arrest. Moreover, the text messages on Miller’s cellphone are near mirror images of the

texts admitted from Appellant’s phone. Given the cumulative nature of Appellant’s texts

and the overwhelming evidence of Appellant’s guilt, we cannot say that a juror would

put much, if any, weight on Appellant’s text messages. See Snowden, 353 S.W.3d at

822 (quoting Delaware v. Van Arsdell, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d

674 (1986)). See also Davis v. State, 203 S.W.3d 845, 849-50 (Tex. Crim. App. 2006);

Renfro v. State, 958 S.W.2d 880, 889 (Tex. App.—Texarkana 1997, pet. ref’d).

Accordingly, it was unlikely the admission of Appellant’s text messages greatly affected

the jury after Miller testified, and his text messages recounting the negotiations and

arrangements undertaken to complete the drug transaction were entered into evidence.

We find the admission of Appellant’s text messages harmless error, if there was error at

all. Appellant’s first issue is overruled.


       ISSUE TWO—INEFFECTIVE ASSISTANCE


       Appellant asserts his counsel was ineffective because he did not request a

pretrial determination whether        Appellant’s text messages should have been

suppressed. During trial, the trial court had the authority to admit or exclude Appellant’s

text messages. See Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988) (a

trial court may consider a motion to suppress before trial or elect to determine its merits


                                             5
during trial when the evidence is offered). Moreover, a defendant’s counsel may either

file a pretrial motion to suppress evidence or wait until trial on the merits and object

when the alleged unlawfully obtained evidence is offered. See Johnson v. State, 743

S.W.2d 307, 309-10 (Tex. App.—San Antonio 1987, pet. ref’d) (citing Roberts v. State,

545 S.W.2d 157, 158 (Tex. Crim. App. 1977)). Accordingly, that Appellant’s attorney

chose the latter approach does not make his representation ineffective, but even if he

were, we find no harm because he objected to the admission of Appellant’s text

messages when the trial court had authority to exclude the evidence and admonish the

jury not to consider it. Issue two is overruled.


       MODIFICATION OF THE JUDGMENT


       In reviewing the record, it has come to this Court's attention that the trial court's

written Judgment contained in the clerk's record includes clerical errors. This Court has

the power to modify the judgment of the court below to make the record speak the truth

when we have the necessary information to do so. TEX. R. APP. P. 43.2(b). Bigley v.

State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Appellate courts have the power to

reform whatever the trial court could have corrected by a judgment nunc pro tunc where

the evidence necessary to correct the judgment appears in the record. Ashberry v.

State, 813 S.W.2d 526, 529 (Tex.App.—Dallas 1991, pet. ref'd). The power to reform a

judgment is "not dependent upon the request of any party, nor does it turn on the

question of whether a party has or has not objected in the trial court." Id. at 529-30.




                                              6
       1. ENHANCEMENTS—The summary portion of the Judgment reflects that Appellant

entered a plea of “True” to the first and second enhancement paragraphs of the

indictment, while the reporter's record clearly shows no plea was ever entered.

Additionally, the Judgment reflects a finding of “True” as to both enhancements, when

the Court’s Charge on Punishment clearly shows the issue was never presented to the

jury and no such finding was ever made. Thus, we modify the Judgment to delete the

word “TRUE” from both the plea and findings as to the 1st and 2nd Enhancements.


       2. COURT-APPOINTED ATTORNEY’S FEES—Furthermore, the written Judgment and

Bill of Costs reflect an assessment of court-appointed attorney’s fees totaling $2,294.35,

while the record does not reflect a finding of ability to pay. In order to assess court-

appointed attorney’s fees as court costs, a trial court must determine the defendant has

financial resources sufficient to offset in part, or in whole, the costs of the legal services

provided. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2013); Mayer v. State, 309

S.W.3d 552, 555-56 (Tex. 2010). Once a defendant has been found indigent, he or she

is presumed to remain indigent for the remainder of the proceedings unless a material

change in financial resources occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

Supp. 2013); Mayer, 309 S.W.3d at 557. Therefore, because the record demonstrates

Appellant was found indigent and qualified for court-appointed counsel, we presume his

financial status had not changed, i.e., he was indigent at the time the trial court entered

judgment.


       Furthermore, the record must reflect some factual basis to support the

determination that the defendant is capable of paying court-appointed attorney’s fees.

See Perez v. State, 323 S.W.3d 298, 307 (Tex. App.—Amarillo 2010, pet. ref’d). See

                                              7
also Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.). We

note the record does not contain a pronouncement, determination or finding that

Appellant had financial resources sufficient for him to pay all, or any part of, the fees

paid his court-appointed counsel, and we are unable to find any evidence to support

such a determination. Accordingly, we conclude the order to pay attorney’s fees was

improper because the evidence was legally insufficient to support a finding Appellant

had the financial resources to pay attorney’s fees. See Mayer, 309 S.W.3d at 556-57.

Accordingly, we modify the Bill of Costs incorporated in the Judgment in Cause No. CR

12355 to delete the requirement that Appellant pay $2,294.35 in court-appointed

attorney’s fees. See Wolfe v. State, 377 S.W.3d 141, 146 (Tex. App.—Amarillo 2012,

no pet.).   As modified, the trial court's judgment is affirmed.


                                        CONCLUSION


       We modify the trial court’s Judgment to delete the word “TRUE” from both the

plea and findings as to the 1st and 2nd Enhancements, and we delete the order to pay

$2,294.35 in court-appointed attorney’s fees. As modified, the judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.




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