                                   NO. 12-09-00358-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

MARCUS DEWAYNE MATLOCK,                           §      APPEAL FROM THE 7TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Marcus Dewayne Matlock was charged by indictment with sixteen counts of criminal
nonsupport. At the conclusion of the trial, the jury found Appellant guilty of all sixteen counts,
and assessed his punishment at two years of confinement and a $10,000 fine on each count.
After concluding that the jury’s finding of guilt on Count I of the indictment was so against the
great weight and preponderance of the evidence as to be manifestly unjust, we sustained a
portion of Appellant’s third issue, reversed the trial court’s judgment, and rendered a judgment
of acquittal on Count I of the indictment. In all other respects, we affirmed the judgment of the
trial court. See Matlock v. State, No. 12-09-00358-CR, 2012 WL 426613, at *10, 12 (Tex.
App.—Tyler Feb. 8, 2012).
       The court of criminal appeals reversed this court’s judgment and remanded the case with
instructions for this court to again review the legal (and, if necessary, factual) sufficiency of the
evidence supporting the jury’s rejection of Appellant’s ―inability to pay‖ affirmative defense.
See Matlock v. State, 392 S.W.3d 662, 665 (Tex. Crim. App. 2013). After due consideration, we
sustain Appellant’s legal sufficiency argument regarding his affirmative defense to Count I of the
indictment, and render a judgment of acquittal.
                                               BACKGROUND
        On March 19, 2009, Appellant was charged by indictment with sixteen counts of criminal
nonsupport, a state jail felony. Appellant was required to pay his child support on the first of
each month during the alleged periods of nonsupport. The indictment alleged that Appellant
failed to pay child support on the first of each month from February 2006 through November
2006, in January 2008 and June 2008, and from September 2008 through December 2008.
Appellant pleaded ―not guilty,‖ and the case proceeded to a jury trial.
        At trial, the State1 showed that Appellant was ordered to pay $191.40 each month
beginning on November 1, 1999, as child support for his minor child. The State produced
Appellant’s payment record from the attorney general’s child support disbursement unit and
financial activity report from the attorney general’s child support enforcement unit. The State
also produced a community supervision order showing the amount of Appellant’s child support
arrearage as of January 31, 2008. The trial court admitted these documents into evidence.
Appellant asserted inability to pay as an affirmative defense to Counts I and II. The jury rejected
Appellant’s affirmative defense, found him guilty of all sixteen counts of criminal nonsupport,
and assessed his punishment at two years of confinement and a $10,000 fine on each count. The
trial court ordered that the sentences run concurrently. This appeal followed.


                                       EVIDENTIARY SUFFICIENCY
        As part of his third issue on original submission, Appellant contends that the evidence is
legally and factually insufficient to support his conviction with regard to Count I (failure to pay
child support on February 1, 2006). He argues that he was in jail from March 6, 2005, to
March 24, 2006, and that his incarceration established his inability to pay as to Count I.
Standard of Review
        The constitutional standard of review applies to the elements of an offense that the state
must prove beyond a reasonable doubt, but it does not apply to elements of an affirmative
defense that the defendant must prove by a preponderance of the evidence. Brooks v. State, 323
S.W.3d 893, 924 n.67 (Cochran, J., concurring); Matlock, 392 S.W.3d at 667. The standard of



        1
            This case was prosecuted by the Office of the Attorney General of Texas and the Criminal District
Attorney of Smith County, Texas. We will refer to these entities collectively as the State unless a more specific
reference is necessary.


                                                       2
review for the legal sufficiency of the evidence to support an adverse finding on an affirmative
defense is as follows:

        When an appellant asserts that there is no evidence to support an adverse finding on which [he
        had] the burden of proof, we construe the issue as an assertion that the contrary was established as
        a matter of law. We first search the record for evidence favorable to the finding, disregarding all
        contrary evidence unless a reasonable factfinder could not. If we find no evidence supporting the
        finding, we then determine whether the contrary was established as a matter of law.


Matlock, 392 S.W.3d at 669 (adopting the legal sufficiency standard of review as modified in
City of Keller v Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). But in applying this standard, we
are aware that ―[t]he final test for legal sufficiency must always be whether the evidence at trial
would enable reasonable and fair-minded people to reach the verdict under review.‖ Id. at 669 n.
19 (quoting City of Keller, 168 S.W.3d at 827).
        In applying the standard to this case, our first step is to look for more than a mere scintilla
of evidence supporting the jury’s implied finding that Appellant had the ability to pay his
February 1, 2006 child support. See Matlock, 392 S.W.3d at 669; see also Burns v. Rochon,
190 S.W.3d 263, 267 (Tex. App.–Houston [1st Dist.] 2006, no pet.) (―More than a scintilla of
evidence exists if the evidence furnishes some reasonable basis for differing conclusions by
reasonable minds about a vital fact’s existence.‖). In doing so, we must disregard all evidence of
Appellant’s inability to pay unless a reasonable fact finder could not do so. See Matlock, 392
S.W.3d at 669; see generally City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). If no
evidence supports the jury’s finding that Appellant had the ability to pay his February 1, 2006
child support, then in the second step, we search the record to see if he established, as a matter of
law, that he did not have the ability to pay his child support. See id.
        In this review, jurors are the sole judges of the credibility of the witnesses and the weight
to be given their testimony; reviewing courts cannot impose their opinions to the contrary. City
of Keller, 168 S.W.3d at 819. But the jury’s decisions regarding credibility must be reasonable.
Id. at 820. ―Jurors cannot ignore undisputed testimony that is clear, positive, direct, otherwise
credible, free from contradictions and inconsistencies, and could have been readily
controverted.‖ Id. The phrase ―could have been readily controverted‖ means the testimony at
issue is of a nature that can be effectively countered by opposing evidence.2 Riley v. State, 378

        2
            Testimony that ―could have been readily controverted‖ does not include, for example, the statements of
an interested witness concerning his own state of mind. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.


                                                         3
S.W.3d 453, 457 (Tex. Crim. App. 2012). Moreover, jurors are not free to believe testimony that
is conclusively negated by undisputed facts. See City of Keller, 168 S.W.3d at 820.
        If the record in this case reveals evidence supporting Appellant’s affirmative defense that
he did not have the ability to pay his February 1, 2006 child support, but that evidence was
subject to a credibility assessment and was evidence that a reasonable jury was entitled to
disbelieve, we will not consider that evidence in our matter-of-law assessment. Matlock, 392
S.W.3d at 670. Thus, whenever reasonable jurors could decide what testimony to discard, a
reviewing court must assume they did so in favor of their verdict, and disregard it in the course
of a legal sufficiency review. City of Keller, 168 S.W.3d at 820.
        A reviewing court may conclude that the evidence is legally insufficient to support the
jury’s rejection of a defendant’s affirmative defense only if he establishes on appeal that the
evidence conclusively proves his affirmative defense and ―that no reasonable jury was free to
think otherwise[.]‖ Matlock, 392 S.W.3d at 670. In other words, under the applicable standard,
an appellant is entitled to an acquittal on appeal despite the jury’s adverse finding on his
affirmative defense only if the evidence conclusively establishes his affirmative defense. Id. A
matter is conclusively established if ordinary minds could not differ as to the conclusion to be
drawn from the evidence. City of Keller, 168 S.W.3d at 816.
        We apply the civil standard when reviewing the factual sufficiency of the evidence
supporting an adverse finding on an affirmative defense because the burden of proof is the same
as in civil cases–preponderance of the evidence. See Matlock, 392 S.W.3d at 671; Meraz v.
State, 785 S.W.2d 146, 150–51 (Tex. Crim. App. 1990). Therefore, when examining whether
Appellant established his factual sufficiency claim, the correct standard of review is whether
after considering the entire body of evidence, the jury’s adverse finding on his affirmative
defense is so against the great weight and preponderance of the evidence as to be manifestly
unjust. See Matlock, 392 S.W.3d at 671; Meraz, 785 S.W.2d at 154–55.
        In a factual sufficiency review of the evidence supporting an adverse finding on an
affirmative defense, an appellate court must view the entirety of the evidence in a neutral light.
See Matlock, 392 S.W.3d at 671. But it may not usurp the function of the jury by substituting its
judgment in place of the jury’s assessment of the weight and credibility of the witnesses’


2012). This is because ―mental workings of an individual’s mind are matters about which adversaries have no
knowledge or ready means of confirming or controverting.‖ Id. Such statements are incontrovertible. Id.


                                                    4
testimony. See Matlock, 392 S.W.3d at 671; Meraz, 785 S.W.2d at 154. Consequently, an
appellate court may sustain a defendant’s factual sufficiency claim only if, after setting out the
relevant evidence and explaining precisely how the contrary evidence greatly outweighs the
evidence supporting the verdict, the court clearly states why the verdict is so against the great
weight of the evidence as to be manifestly unjust, conscience shocking, or clearly biased. See
Matlock, 392 S.W.3d at 671; Meraz, 785 S.W.2d at 154 n.2.
Applicable Law
       An individual commits criminal nonsupport if the individual ―intentionally or knowingly
fails to provide support for the individual’s child younger than 18 years of age. . . .‖ TEX. PENAL
CODE ANN. § 25.05(a) (West 2011). An obligor’s ability to pay child support is not an element
of the offense. Champagne v. State, No. 13-11-00657-CR, 2012 WL 2469677, at *3 (Tex.
App.—Corpus Christi June 28, 2012, no pet.) (mem. op., not designated for publication). Rather,
―[i]t is an affirmative defense to prosecution [for criminal nonsupport] that the actor could not
provide support for the actor’s child.‖ TEX. PENAL CODE ANN. § 25.05(d) (West 2011). The
obligor has the burden of proving the affirmative defense by a preponderance of the evidence.
See id. § 2.04(d)(West 2011); Ballard v. State, 161 S.W.3d 269, 271 (Tex. App.—Texarkana
2005), aff’d, 193 S.W.3d 916 (Tex. Crim. App. 2006). Evidence supporting a jury’s adverse
finding on a defendant’s affirmative defense of inability to pay can include (1) ability to work,
(2) receipt of income while in jail, (3) payment of child support during past periods of
incarceration, and (4) past history of making child support payments from money saved while
working. See Deltuva v. State, No. 05-05-01325-CR, 2007 WL 1054134, at *12 (Tex. App.–
Dallas Apr. 10, 2007, no pet.) (op., not designated for publication) (citing Howard v. State, 145
S.W.3d 327, 335-36 (Tex. App.–Fort Worth 2004, no pet.)).
Evidence of Ability to Pay
       In Count I of the indictment, the State alleged that Appellant failed to pay child support
on February 1, 2006. At trial, the State called three witnesses: the Smith County District Clerk,
an employee of the Office of the Attorney General of Texas (OAG), and the mother of the child
for whom the child support was ordered. Appellant also called three witnesses: the chief deputy
of the Smith County Sheriff’s Office jail division, a local attorney, and a Smith County probation
officer. Appellant also testified. None of these witnesses provided any testimony or other
evidence supporting the jury’s implied finding that Appellant had the ability to pay his



                                                5
February 1, 2006 child support. The State disagrees, asserting that Appellant testified he was
working in February 2006. However, the record reflects that his testimony was not so definite.
The prosecutor asked Appellant on cross examination whether he paid child support on
February 1, 2006, to which Appellant replied ―I don’t know.‖ He then explained that ―at that
time I think I was at the prayer center [a rehabilitation center]. And if I was, I was working and
they was supposed to . . . have sent it.‖
        Moreover, in conducting our review, we are mindful that jurors are not free to believe
testimony that is conclusively negated by undisputed facts. See City of Keller, 168 S.W.3d at
820. Appellant introduced his ―book-in, book-out sheet‖ into evidence through Chief Deputy
Gary Pinkerton, who was the custodian of the records for individuals booked into the Smith
County Jail. This document shows that Appellant was confined in the Smith County Jail from
March 6, 2005, until March 24, 2006.        Additionally, Appellant’s probation officer, Kasey
Quesada, testified that Appellant submitted himself to the Family Prayer Center on July 14,
2006.   She also verified that Appellant was ―incarcerated‖ from March 6, 2005, through
March 24, 2006.
        Neither the State nor the OAG disputed the authenticity or the accuracy of the book-in
sheet or the veracity of Pinkerton’s or Quesada’s testimony. Therefore, even if we assume that
Appellant’s testimony can be interpreted as a statement that he was working on February 1,
2006, this testimony was conclusively negated by undisputed facts. Consequently, the jury could
not have credited Appellant’s testimony in favor of its implied finding and we do not consider it
in our review. See City of Keller, 168 S.W.3d at 820 (jurors not free to believe testimony that is
conclusively negated by undisputed facts); Matlock, 392 S.W.3d at 669 (standard of review for
legal sufficiency requires evidence contrary to jury’s finding to be disregarded unless a
reasonable fact finder could not).
        Based upon our review of the evidence that we are authorized to consider in the first step
of our analysis, we conclude that the record contains no evidence to support the jury’s implied
finding that Appellant had the ability to pay his February 1, 2006 child support. Accordingly, we
now address whether Appellant conclusively established his affirmative defense of inability to
pay child support on February 1, 2006. See Matlock, 392 S.W.3d at 669.




                                                6
Evidence of Inability to Pay
         In support of his affirmative defense, Appellant introduced his Smith County Jail ―book-
in, book-out‖ sheet into evidence.3 This document showed that between February 11, 1995, and
June 4, 2009, Appellant had been confined in the Smith County Jail seven times and arrested but
not confined six times. The offenses included harassment, ―DWLS,‖ misdemeanor theft, driving
while intoxicated, family violence assault, nonpayment of child support, interference with an
emergency call, and burglary of a habitation. At the time his February 1, 2006 child support was
due, he had been confined in the Smith County Jail just short of eleven months (since March 6,
2005).
         Appellant testified that he has six children–three with his wife and three others for whom
he is ordered to pay child support. He admitted that he had used marijuana and other drugs as
well as alcohol. He explained that he had not paid his February 1, 2006 child support because he
―didn’t have no money. Nobody would give me money.‖ He stated that he did not have a job
while he was in jail and that nobody would pay his child support for him or give him the money
to pay it. He had asked his uncle, who is a dentist, to help him pay his child support, but his
uncle gave him ―[z]ero,‖ even though Appellant told him he would pay him back.
         Kasey Quesada testified that she supervised Appellant during the five years he was on
community supervision (from May 2003 until February 21, 2008) for nonpayment of child
support. When asked, she declined to categorize him as a ―reasonably good probationer.‖ She
recounted that he ―has a drug addiction,‖ ―relapsed multiple times,‖ and that she ―assume[d] it
was his drug addiction that kept him from paying his child support as ordered.‖ She also
testified that the judge who placed Appellant on community supervision had ordered him to
treatment ―a couple of different times‖ and that Appellant had voluntarily submitted himself to
two different hospitals to obtain treatment for depression.
         Chief Deputy Gary Pinkerton testified that jail inmates cannot receive any money for the
jobs they may do in jail. And finally, Peter Milne, a local attorney, testified that he was
appointed to represent Appellant for nonpayment of child support between 2005 and 2007.
Appellant was entitled to appointed counsel ―because he qualified as an indigent person.‖ Milne
recalled that Appellant was ―incarcerated‖ when he was appointed to represent him, but was


         3
           At the time Appellant introduced this document, he was acting as his own counsel. He later agreed that
his court-appointed attorney should resume his representation.


                                                        7
ultimately released on the condition that he stay at the Family Prayer Counseling Center. Milne
described the prayer center as an intensive treatment program for ninety days and then an
aftercare program.
        Neither the OAG nor the State introduced any evidence to controvert Appellant’s
testimony or that of any of his witnesses. Although Appellant was subjected to a rigorous cross
examination by the prosecutor, he steadfastly maintained that he had no money, and could not
obtain any money, to pay his February 1, 2006 child support. And nothing to the contrary was
elicited from any of Appellant’s witnesses on cross examination.
        The State urges that the jury was entitled to believe Appellant had the ability to pay his
February 1, 2006 child support because he said he was working in February 2006. We addressed
that testimony in the preceding section and determined that other evidence conclusively proved
Appellant was in jail in February 2006. Therefore, the jury was not entitled to believe otherwise.
The State also contends that Appellant presented no evidence to satisfy his burden to prove he
had no savings. But by his testimony that he did not have any money and could not get any
money to pay his child support, Appellant represented, in substance, that he did not have any
money available from any source, including savings. Therefore, we reject this argument. But
our analysis does not end here.
        Appellant’s testimony, and the testimony of his witnesses, was subject to a credibility
assessment. As we stated earlier, jurors are the sole judges of the credibility of the witnesses and
the weight to be given their testimony, and we cannot impose our opinions to the contrary. City
of Keller, 168 S.W.3d at 819. But the jury’s decisions regarding credibility must be reasonable.
Id. at 820. After reviewing the evidence supporting Appellant’s inability to pay affirmative
defense, but before addressing credibility, we are persuaded that he has conclusively established
his affirmative defense. See id. at 816 (matter conclusively established if ordinary minds could
not differ as to the conclusion to be drawn from the evidence). Because the jury reached a
contrary conclusion, we must assume that the jury discarded Appellant’s testimony in favor of its
implied finding that he had the ability to pay his February 1, 2006 child support. See City of
Keller, 168 S.W.3d at 820 (―[W]henever reasonable jurors could decide what testimony to
discard, a reviewing court must assume they did so in favor of their verdict and disregard it in the
course of legal sufficiency review.‖). After further analysis, we conclude that the jury was not
entitled to do so.



                                                 8
        Appellant testified that (1) he had no money to pay his February 1, 2006 child support,
(2) no one would give him any money to pay it, (3) no one would pay it for him, and (4) he asked
his uncle for money to pay it, but was refused. This testimony is clear, positive, direct, and free
from contradictions and inconsistencies. See id. His statements about his lack of funds and
resources could have been effectively countered by opposing evidence. Cf. Riley, 378 S.W.3d at
457 (witness’s state of mind not type of evidence that can be readily controverted). Yet neither
the OAG nor the State presented any testimony or introduced other evidence that suggested
Appellant had the money or could have obtained the money to pay his February 1, 2006 child
support.4
        Other witnesses called by Appellant testified that Appellant had a ―drug addiction,‖ had
multiple relapses between 2003 and 2008, had been ordered to treatment twice by the judge, was
ordered to treatment for his drug addiction as a condition of his release from jail on March 24,
2006, and had twice voluntarily submitted to treatment for depression.                          Another witness
informed the jury that Appellant had been found indigent during a two year period that included
February 1, 2006. And his book-in sheet showed that he had a significant criminal history and
was confined in the Smith County Jail from March 6, 2005, until March 24, 2006.
        Appellant’s testimony that he had no money and could not obtain any money from
anyone is consistent with his personal history as described by these witnesses and his book-in
sheet. None of this evidence was disputed. Therefore, Appellant’s testimony regarding his
inability to pay was ―otherwise credible.‖ City of Keller, 168 S.W.3d at 820.
        A jury is not free to ignore ―undisputed testimony that is clear, positive, direct, otherwise
credible, free from contradictions and inconsistencies, and could have been readily
controverted.‖      City of Keller, 168 S.W.3d at 820.                Appellant’s testimony satisfies these
requirements.
        In summary, no evidence supports the jury’s implied finding that Appellant had the
ability to pay his February 1, 2006 child support. Appellant conclusively proved his affirmative
defense, and the jury was not entitled to discard his testimony in favor of its implied finding.

        4
           As an aside, we note that the OAG’s counsel told the jury that ―I’m not going to be upset or disagree with
you if you decide that for those entire three months [February, March, and April 2006] he gets a pass [because he
was in jail].‖ Later in his argument, the OAG’s counsel told the jury that ―the only one of those [months during
which he was in jail and did not pay child support that] I think is going to give you any question about, you know,
again if you think being in jail is an excuse - and again, I’m not going to quarrel with you - that then gives him
February [2006].‖


                                                         9
Therefore, we hold that the evidence is legally insufficient to support the jury’s implied finding
that Appellant had the ability to pay the portion of his February 1, 2006 child support.
Accordingly, we sustain Appellant’s third issue on original submission pertaining to his
conviction on Count I of the indictment.


                                                    DISPOSITION
         Having sustained a portion of Appellant’s third issue on original submission (the sole
issue for our consideration on remand), we reverse the judgment of the trial court as to Count I
of the indictment and render a judgment of acquittal. Because we have held that the evidence is
legally insufficient to support the jury’s implied finding as to Count I, we need not address
Appellant’s factual sufficiency argument. See TEX. R. APP. P. 47.1.


                                                                SAM GRIFFITH
                                                                  Justice

Opinion delivered March 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                          10
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 31, 2014


                                         NO. 12-09-00358-CR


                               MARCUS DEWAYNE MATLOCK,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                  Appeal from the 7th District Court
                        of Smith County, Texas (Tr.Ct.No. 007-0356-09)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment, it is ORDERED, ADJUDGED and DECREED by this Court that the judgment
of the trial court below as to Count I of the indictment be reversed and a judgment of acquittal
be rendered, and the same is, hereby entered herein in accordance with the opinion of this
Court; and that this decision be certified to the court below for observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     11
