                                   NO. 12-12-00339-CR

                         IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

LEO DANIEL HARBER,                                 §           APPEAL FROM THE 7TH
APPELLANT

V.                                                 §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                           §           SMITH COUNTY, TEXAS

                                     MEMORANDUM OPINION
       Leo Daniel Harber appeals his conviction for sexual assault. In four issues, Appellant argues
that the trial court erred in admitting evidence and that the evidence is insufficient to support the trial
court’s judgment. We modify the judgment and affirm as modified.


                                             BACKGROUND
       Appellant pleaded guilty to the offense of sexual assault in 2004. Pursuant to an agreement
reached between Appellant and the State, the trial court found that the evidence substantiated
Appellant’s guilt and placed him on deferred adjudication community supervision for a period of ten
years. One of the conditions of Appellant’s community supervision was that Appellant could not
“own, possess, or be around at any time or any place a firearm.”
       In 2012, the State filed to adjudicate Appellant’s guilt. In the application, the State alleged
that Appellant had possessed a firearm. Appellant pleaded not true, but the trial court found that
allegation to be true, adjudicated Appellant guilty, and assessed a punishment of imprisonment for
twenty years. This appeal followed.
                                            ADMISSION OF EVIDENCE
          In his first and second issues, Appellant argues that the trial court erred in admitting a letter
during the penalty phase of the proceeding.                 Specifically, he argues that the letter was not
authenticated by any witness, that its probative value was outweighed by the danger of unfair
prejudice, and that its admission violated Appellant’s Sixth Amendment right to confront witnesses
against him.
          The letter in question was posted on the house of Appellant’s wife’s adult daughter. She
lived next door to the house where Appellant lived. The letter reads, “I wouldn’t. I revoked my
rights to allow you near my kids when I’m here, and trespassing when I have 6 kids, 2 of them girls is
illegal for a registered sex offender. So is taking pictures of my girl’s bedrooms. Leave me alone +
I’ll return the favor.”
          The State first offered the photograph of the letter during the adjudication phase of the
hearing. Appellant objected to the letter on the basis that it was irrelevant and because it was
hearsay. The trial court sustained the relevancy objection but indicated that it would reconsider its
ruling.       After the trial court found that Appellant had violated the terms of his community
supervision, the State offered the letter again. Appellant “renew[ed] our same objection on that [sic]
relevance.” Counsel made a statement that the person who may have written the letter could have
been brought as a witness but returned to the argument that the document was irrelevant. The trial
court, citing Texas Code of Criminal Procedure Article 37.07,1 found that the document was relevant,
and admitted it.
          On appeal, Appellant does not argue that the document is irrelevant, the argument he
advanced at trial. Instead, he asserts that it was not properly authenticated, that its admission violates
Rule of Evidence 403 because it is more prejudicial than probative, and that its admission violates his
right to confront witnesses.
          To preserve an issue for appellate review, a party must make an objection in the trial court that
is specific and clear enough to provide the judge and the opposing party an opportunity to address
and, if necessary, correct the purported error. Ford v. State, 305 S.W.3d 530, 533 (Tex. Crim. App.


          1
           We express no opinion, generally, on the admissibility of this evidence at a punishment hearing. While
Article 37.07 does not suspend the rules of evidence, it does expand the zone of relevant evidence during the punishment
phase of a trial. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § (3)(a)(1) (West Supp. 2012); Smith v. State, 227 S.W.3d
753, 763 (Tex. Crim. App. 2007).
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2009). An objection is considered in the context in which the complaint was made and the parties’
shared understanding of the complaint at that time. See Lankston v. State, 827 S.W.2d 907, 911
(Tex. Crim. App. 1992). It does not appear that the parties or the trial court understood Appellant’s
objection to be anything other than an objection to the evidence on the basis of relevance. The three
theories Appellant now offers to exclude the evidence were not argued to the trial court, and so these
issues are not preserved for our review. See TEX. R. APP. P. 33.1(a)(1); Resendiz v. State, 112
S.W.3d 541, 547 (Tex. Crim. App. 2003).
        Even if Appellant’s suggestion that the State should have brought the letter writer as a witness
did preserve the arguments he now makes about authentication and confrontation of witnesses,
Appellant has not shown any reversible error. The Confrontation Clause of the Sixth Amendment of
the United States Constitution requires that a defendant be permitted to cross examine a person before
his “testimonial” statements can be admitted. See Crawford v. Washington, 541 U.S. 36, 54, 124 S.
Ct. 1354, 1366, 158 L. Ed. 2d 177 (2004). Whether a statement is testimonial can be difficult to
determine with specificity in certain cases, but this letter does not appear to be testimonial.
        Testimonial statements include ex parte in–court testimony or its functional equivalent
including affidavits, or other “pretrial statements that declarants would reasonably expect to be used
prosecutorially.” Id., 541 U.S. at 51–52, 124 S. Ct. at 1364. This document is a letter posted on a
house. It does not resemble anything like a statement to the police or court testimony. Also, the
document scarcely contains any factual assertions at all. To the extent that there is an assertion that
Appellant had taken pictures of a child’s bedroom or had been around children, it is simply not
possible to conclude that the writer intended to have that statement used in court as a substitute for
testimony. Therefore, any implicit ruling on an objection invoking the Confrontation Clause is not
in error.
        Appellant does not develop his argument that the letter is unauthenticated. Instead, he simply
states that the record is devoid of testimony or evidence suggesting the authorship or authenticity of
the handwritten letter. We disagree. The authenticity requirement is “satisfied by evidence to
support a finding that the matter in question is what its proponent claims.” See TEX. R. EVID. 901(a).
A police officer testified that the letter was a copy of the letter discovered on a house next to
Appellant’s house. The weight and relevance to be assigned to a hearsay document authorized by an
unknown person is an entirely different question. But we are unable to conclude that the trial court

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erred in determining, if it did, that the exhibit was an authentic representation of the letter recovered
by the police officer. We overrule Appellant’s first and second issues.


                                     SUFFICIENCY OF THE EVIDENCE
        In his third issue, Appellant argues that the evidence is insufficient to support the revocation
of his community supervision.
Standard of Review
        To revoke community supervision, the state must prove a violation of a condition of
community supervision by a preponderance of the evidence. See Hacker v. State, 389 S.W.3d 860,
864–65 (Tex. Crim. App. 2013). In this context, “a preponderance of the evidence” means “that
greater weight of the credible evidence which would create a reasonable belief that the defendant has
violated a condition of his [community supervision].” Id. at 865 (quoting Rickels v. State, 202
S.W.3d 759, 764 (Tex. Crim. App. 2006)).
        We review a trial court’s decision to revoke community supervision for an abuse of discretion
in light of the state’s burden of proof. Hacker, 389 S.W.3d at 864. Evidence is insufficient when
“the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or
suspicion of its existence.” Id. (quoting Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)).
Analysis
        Appellant argues that the evidence does not show he exercised actual care, control, or custody
of a firearm, was conscious of his connection with it, and possessed it knowingly or intentionally.
This is a definition of possession. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)
(West 2010).      The trial court found that Appellant violated the condition of his community
supervision that he not be “around at any time or place, a firearm, explosive device, ammunition, or
firearm parts.”2 This is not evidence of possession, but it is sufficient to be a violation of Appellant’s
community supervision because he was forbidden to be “around” a firearm.
        The trial court’s factual conclusion is supported by the record. An officer testified that
Appellant told him where firearms could be found in the home–in the closet of the master bedroom–
and that firearms were found in that location. Additionally, Appellant’s wife answered in the


        2
          The trial court stated, “All I have heard here today [is] they were in your home; that you directed law
enforcement to them. So that is being around them.”
                                                       4
affirmative when asked if the evidence would indicate that Appellant knew the guns were present.
Because the evidence supports the trial court’s finding that Appellant violated the terms of his
community supervision by being around firearms, we overrule Appellant’s third issue.


                                                   COURT COSTS
        In his fourth issue, Appellant argues that the court costs assessed in this case are not supported
by a bill of costs and asks this court to modify the judgment and impose those costs that are supported
by the record.3
        We measure the sufficiency of the evidence supporting an order of court costs by reviewing
the record in the light most favorable to the award. Mayer, 309 S.W.3d at 557. Requiring a
convicted defendant to pay court costs does not alter the range of punishment, is authorized by statute,
and is generally not conditioned on a defendant’s ability to pay. See TEX. CODE CRIM. PROC. ANN.
art. 42.16 (West 2006); Armstrong, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Attorney’s fees,
however, may not be assessed against a defendant who has been found to be indigent “unless a
material change in [his] financial circumstances occurs.” See TEX. CODE CRIM. PROC. ANN. art.
26.04(p) (West Supp. 2012). A finding of a change of circumstances is a necessary prerequisite to
the imposition of attorney’s fees, and the evidence will be insufficient to support such an order in the
absence of that finding. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West Supp.
2012); Mayer, 309 S.W.3d at 553; Wolfe v. State, 377 S.W.3d 141, 144, 146 (Tex. App.–Amarillo
2012, no pet.).
        We have reviewed the bill of costs and the record in this case. Appellant was determined to
be indigent, and there is no finding in the record that he was able to pay attorney’s fees. The court
costs of $427.00 are supported by the record with the exception, as the State concedes, of an award of
$300.00 as an “attorney fee.” Accordingly, we sustain Appellant’s fourth issue in part.


        3
            The State contends that Appellant’s argument must fail because he did not preserve his complaint by making a
contemporaneous objection to the court costs in the trial court. We disagree. See Cardenas v. State, No.
01-11-01123-CR, 2013 Tex. App. LEXIS 2980, at *19–20 (Tex. App.–Houston [1st Dist.] Mar. 21, 2013, no pet.) (not yet
released for publication) (“contemporary objection in the trial court is not required" to challenge assessment of costs)
(citing Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010) (“A claim regarding sufficiency of the evidence need
not be preserved for review at the trial level and is not waived by the failure to do so.”)). The State also argues that
Appellant should not be allowed to benefit from an incomplete record when he fails to request that a bill of costs be
included in the record on appeal. We need not address this argument because the record has been supplemented with a
bill of costs. See TEX. R. APP. P. 47.1.
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                                                     DISPOSITION
         We have overruled Appellant’s first, second, and third issues. We have also sustained
Appellant’s fourth issue in part. Accordingly, we modify the trial court’s judgment of conviction to
reflect that the amount of court costs is $127.00 and affirm as modified. See TEX. R. APP. P. 43.2(b).



                                                                    JAMES T. WORTHEN
                                                                       Chief Justice

Opinion delivered July 31, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)




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                                 COURT OF APPEALS
            TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT
                                              JULY 31, 2013


                                        NO. 12-12-00339-CR

                                       LEO DANIEL HARBER,
                                             Appellant
                                                V.
                                       THE STATE OF TEXAS,
                                             Appellee

_____________________________________________________________________________
                       Appeal from the 7th Judicial District Court
                   of Smith County, Texas. (Tr.Ct.No. 007-0004-04)
_____________________________________________________________________________
                 THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judment below should be modified and, as modified, affirmed.
                        It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $127.00; and as
modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial court
below for observance.
                        James T. Worthen, Chief Justice.
                        Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


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