                                        NO. 12-12-00366-CR

                            IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

JOSE MANUEL SANDOVAL,                                §              APPEAL FROM THE 114TH
APPELLANT

V.                                                   §              JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                             §              SMITH COUNTY, TEXAS

                                             MEMORANDUM OPINION
       Jose Manuel Sandoval appeals his conviction for the offense of aggravated sexual assault
of a child. He raises two issues on appeal. We modify and affirm as modified.


                                                 BACKGROUND
       In 2012, a Smith County grand jury indicted Appellant for the felony offense of continuous
sexual abuse of a child, alleged to have occurred from August 1, 2009, to August 1, 2010. 1 The
State later amended its indictment to allege the lesser included offense of aggravated sexual assault
of a child, and alleged that the offense occurred on or about February 7, 2010.2 Appellant pleaded
“not guilty” to the offense, and a jury trial was held. Ultimately, a jury found Appellant guilty and
assessed punishment at life imprisonment and a $10,000.00 fine. The trial court sentenced
Appellant accordingly and ordered payment of court costs.



       1
           See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2012).
       2
           See id. § 22.021(a)(1)(B)(iii).
                              INEFFECTIVE ASSISTANCE OF COUNSEL
        In his first issue, Appellant contends that he received ineffective assistance of counsel
during the punishment phase of his trial.        Specifically, Appellant argues that counsel was
ineffective by not objecting to the jury’s improper consideration of parole law as it applied to him.
Standard of Review
        It is well settled that an accused has the right to effective assistance of counsel. Strickland
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). The
benchmark for judging any claim of ineffective assistance of counsel is whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be relied upon
as having produced a just result. Id., 466 at 686, 104 S. Ct. at 2064. We follow the standard set
forth in Strickland to determine whether counsel was ineffective. Hernandez v. State, 726
S.W.2d 53, 57 (Tex. Crim. App. 1986).
        To prevail on an ineffective assistance of counsel claim, an appellant must prove by a
preponderance of the evidence (1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064;
Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). The first prong of the test
requires a showing that counsel made errors so serious that counsel was not functioning as the
counsel required by the Sixth Amendment, and that counsel’s representation fell below an
objective standard of reasonableness. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
The second prong requires a showing that counsel’s errors were so serious as to deprive the
appellant of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Simply put, the
appellant must show a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Tong, 25 S.W.3d at 712; Thompson, 9
S.W.3d at 812. A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Tong, 25 S.W.3d at 712. If both prongs of the Strickland test are not satisfied, we
cannot conclude that the trial results were unreliable. See Strickland, 466 U.S. at 687, 104 S. Ct.
2064.
        Judicial review of an ineffectiveness claim is highly deferential.         See Thompson, 9
S.W.3d at 813. In conducting this review, we presume that counsel’s conduct fell within the wide
range of reasonable professional assistance. See id. Thus, allegations of ineffectiveness must be
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firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. See id. at 814. In the majority of cases, the record on direct appeal is simply
undeveloped and cannot adequately reflect the alleged failure of trial counsel in order to satisfy
Strickland’s requirements. See id. at 813-14. Trial counsel “should ordinarily be afforded an
opportunity to explain [her] actions before being denounced as ineffective.” Menefield v. State,
363 S.W.3d 591, 593 (Tex. Crim. App. 2012). If trial counsel is not given that opportunity, then
the appellate court should not find deficient performance unless the challenged conduct was so
outrageous that no competent attorney would have engaged in it. Id.
Applicable Law
       The code of criminal procedure requires that a parole instruction be given in a jury charge
on punishment in most felony cases. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West
Supp. 2012). The parole instruction is required when a defendant has been convicted under
Section 22.021(a)(1)(B)(iii) of the penal code.                    See id.; TEX. PENAL CODE ANN.
§ 22.021(a)(1)(B)(iii) (West Supp. 2012). Section 4(a) provides that a jury is “not to consider the
manner in which the parole law may be applied to this particular defendant.”
       An appellate court may presume that a jury will follow an instruction as given. Luquis v.
State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002); Byrd v. State, 192 S.W.3d 69, 72 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref’d). Instructions to the jury are generally considered
sufficient to cure improprieties that occur during trial. Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009) (citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)
(jury presumed to disregard parole during deliberation when so instructed)). This includes
instructions given to the jury after it has begun its deliberations. See, e.g., Byrd, 192 S.W.3d at
72; Graham v. State, 96 S.W.3d 658, 661 (Tex. App.—Texarkana 2003, pet. ref’d).
Discussion
       The court’s charge on punishment included the parole eligibility instruction as required by
Section 4(a). See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a). During its deliberations, the
jury submitted a note asking the following questions:


               (1)   With a life sentence is he ever eligible for parole?
               (2)   Does time off for good behavior less[e]n/reduce parole eligibility?
               (3)   Does time off for good behavior less[e]n the overall sentence?
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               Example: 50 year sentence
                         - Eligible for parole w/ 10 years good behavior [mean] you look 40
                             overall[,] then he becomes eligible at 20 years or 25 years
               (4) With a fine, where does the money go?


With no objection, the trial court answered the jury’s note by giving the following response:


               The law does not allow the Court to answer your questions. Please refer to the
               entire Charge of the Court. You are to be guided by the law and instructions
               contained therein.



       The charge of the court instructed the jury (1) that the defendant “may earn time off the
sentence imposed through the award of good conduct time”; (2) that “the length of time for which
the defendant will be imprisoned might be reduced by the award of parole [but that] he will not
become eligible for parole until the actual time served equals one-half of the sentence imposed or
thirty years, whichever is less, without consideration of any good conduct time”; (3) that parole
eligibility “does not guarantee that parole will be granted”; and (4) that the application of parole
law and good conduct time “cannot be accurately predicted . . . because [the decision is] made by
prison and parole authorities.” Finally, the charge instructed the jury that it could consider the
existence of the parole law and good conduct time, but it could not “consider the extent to which
good conduct time may be awarded [or] the manner in which the parole law may be applied to this
particular defendant.”
       Appellant concedes that the court’s charge on punishment contained the proper parole law
instruction and admonished the jury not to consider its application to Appellant. Nevertheless,
Appellant argues that, had trial counsel asked the court to respond with the instruction it was
required to give by statute, she would have “indicate[d] effective assistance.” Appellant contends
that counsel’s failure to request a more specific instruction “effectively aided in ensuring that his
sentence would be on the high-end as the jury’s improper consideration of parole for that purpose
went unchecked.” Appellant argues that instead of acquiescing to the trial court’s response, trial
counsel should have requested the trial court to instruct the jury that “[y]ou are not to consider the
manner in which the parole law may be applied to this particular defendant.”
       The trial court’s response to the jury’s question instructing it to refer to the “entire” court’s

                                                     4
charge is presumed to have been followed. See Colburn, 966 S.W.2d at 520; Byrd, 192 S.W.3d at
72. The court’s charge correctly instructed the jury on the law relating to parole eligibility and
good conduct time. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a). Even if the jury’s note
constitutes evidence that the jury discussed parole at a preliminary point, we presume that they
followed the trial court’s instructions and thereafter did not consider it in reaching their verdict.
See Graham, 96 S.W.3d at 661; Nabors v. State, No. 12-00-00371-CR, 2002 WL 1362470, at *7
(Tex. App.—Tyler June 21, 2002, pet. ref’d) (mem. op., not designated for publication).
Appellant did not file a motion for new trial alleging juror misconduct or obtain a hearing to
adduce facts not in the record. Thus, there is no evidence in the record to rebut the presumption
that the jury did not consider parole in assessing its sentence. See Colburn, 966 S.W.2d at 520.
       Appellant has not proved by a preponderance of the evidence that he received ineffective
assistance of counsel during the punishment phase of trial that resulted in a breakdown of the
adversarial process. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at
812-13. The trial court’s response to the jury’s question was not error because it instructed the
jury to refer to the charge, which correctly stated the law on parole eligibility and good conduct
time. Trial counsel’s failure to object to that which is unobjectionable is not ineffective assistance
of counsel, nor does it cause her performance to fall below an objective standard of
reasonableness. See Tong, 25 S.W.3d at 712; Thompson, 9 S.W.3d at 812; see also Edmond v.
State, 116 S.W.3d 110, 115 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (trial counsel not
ineffective for failing to make frivolous objections); Doyle v. State, 875 S.W.2d 21, 23 (Tex.
App.—Tyler 1994, no pet.).
       The first prong of the Strickland test for ineffective assistance of counsel has not been
satisfied. See Strickland, 466 U.S. at 687, 104 S. Ct. 2064. Accordingly, we cannot conclude
that Appellant received ineffective assistance of counsel during the punishment phase of trial.
See id. We overrule Appellant’s first issue.


                                           COURT COSTS
       In his second issue, Appellant argues that the trial court erred in imposing court costs not
supported by the bill of costs and by ordering the court costs to be withdrawn from his inmate trust
account.    After Appellant filed his brief, the record was supplemented with a bill of costs.
                                                  5
Accordingly, we review Appellant’s issue as a challenge to the sufficiency of the evidence
supporting court costs. See Johnson v. State, No. 12-12-00289-CR, 2013 WL 3054994, at *2
(Tex. App.—Tyler June 19, 2013, no pet.) (not yet released for publication) (permitting
supplementation of record with bill of costs and conducting sufficiency analysis).3
Standard of Review and Applicable Law
         A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas v. State, No.
01-11-01123-CR, 2013 WL 1164365, at *6 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no
pet.) (not yet released for publication). 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 at 767; see also Johnson, 2013 WL 3054994, at *3.
         Some court costs, such as attorney’s fees, may not be assessed against a defendant if he was
found indigent because his indigence is presumed to continue throughout the remainder of the
proceedings “unless a material change in [his] financial circumstances occurs.” See TEX. CODE
CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). If a trial court does not make a determination
that a defendant’s financial circumstances materially changed that is also supported by some
factual basis in the record, the evidence will be insufficient to impose attorney’s fees as court costs.
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.).
Discussion
         The judgment of conviction reflects that the trial court assessed $685.00 in court costs.
The supplemental clerk’s record shows that the bill of costs also assessed $685.00 in court costs.


         3
           In his brief, Appellant argues that his due process rights were violated because the imposition of court costs
contained in the withdrawal order attached to the judgment was issued without informing him of the statutory basis of
the withdrawal. He contends that, because the bill of costs was not included in the record, he has no way to
determine, or challenge, whether the costs were correctly assessed. The bill of costs is now included in the record.
Appellant has not been deprived of the opportunity to file a supplemental or reply brief to challenge whether the costs
in the withholding order were correctly assessed.

                                                           6
Included in the bill of costs is the imposition of $300.00 for attorney’s fees. The State concedes
that the imposition of attorney’s fees is improper.               The record shows that Appellant was
determined to be indigent on two separate occasions because he received appointed counsel to
represent him at trial, and the trial court continued its finding and appointed counsel to represent
Appellant on appeal. There is no evidence in the record to rebut the presumption that Appellant’s
indigence continued throughout the remainder of the proceedings. See TEX. CODE CRIM. PROC.
ANN. art. 26.04(p); Wolfe, 377 S.W.3d at 144. Consequently, the evidence is insufficient to
support the imposition of attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. art.
26.04(p), 26.05(g); Mayer, 309 S.W.3d at 553; Wolfe, 377 S.W.3d at 146. Aside from the
attorney’s fees, no other items have been challenged as being improperly assessed. Accordingly,
the evidence is sufficient to support the imposition of $385.00 in court costs. We sustain
Appellant’s second issue in part.


                                                    DISPOSITION
         Having overruled Appellant’s first issue, but sustained his second issue in part, we modify
the judgment of the trial court to reflect that the amount of court costs is $385.00. See TEX. R.
APP. P. 43.2(b). We also modify Attachment A to delete the assessment of $300.00 in attorney’s
fees and to state that the total amount of “court costs, fees and/or fines and/or restitution” is
$385.00.      See Ballinger v. State, No. 12-12-00280-CR, 2013 WL 3054935, at *3 (Tex.
App.—Tyler June 19, 2013, no pet.) (not yet released for publication). We affirm the judgment
of the trial court as modified. See TEX. R. APP. P. 43.2(b).


                                                                SAM GRIFFITH
                                                                   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. 12-12-00366-CR

                                  JOSE MANUEL SANDOVAL,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee

_____________________________________________________________________________
                            Appeal from the 114th Judicial District Court
                          of Smith County, Texas. (Tr.Ct.No. 114-0585-12)
 _____________________________________________________________________________
                       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 $385.00. We also
modify Attachment A to delete the assessment of $300.00 in attorney’s fees and to state that the
total amount of “court costs, fees and/or fines and/or restitution” is $385.00; and as modified, the
trial court’s judgment is affirmed; and that this decision be certified to the trial court below for
observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



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