                              NUMBER 13-14-00194-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


YOANDRY MONTANO,                                                                       Appellant,

                                                  v.

THE STATE OF TEXAS,                                                                     Appellee.


                       On appeal from the 221st District Court
                           of Montgomery County, Texas.


                              MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
       Appellant Yoandry Montano challenges his conviction for injury to a child, a first-

degree felony.1 See TEX. PENAL CODE ANN. § 22.04(a)(1), (e) (West, Westlaw through



       1  This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw
through 2013 3d C.S.).
2013 3d C.S.). After Montano entered a plea of not guilty, a jury found him guilty as

charged and assessed his punishment at fifty years’ confinement in the Texas

Department of Criminal Justice, Institutional Division.                  By three issues, Montano

complains that the trial court abused its discretion by (1) allowing witnesses to testify to

his demeanor and emotions, (2) admitting evidence of his unadjudicated extraneous acts

at the punishment phase of the trial, and (3) assessing attorney’s fees against him. We

affirm the trial court’s judgment as modified.

                                           I. BACKGROUND2

        Montano was arrested following an investigation into the death of a two-year-old

child. Montano, who was in a relationship with the child’s mother, was caring for the child

when he died. During his interview with the police on the day he was arrested, Montano

explained that he was cooking, had to use the restroom, and then found the child. But

at trial Montano testified that while he was preparing food for the child, he placed the child

on the countertop, and the child fell after Montano left the room.

        Rolando Jimenez, a friend who was staying at the trailer when the incident

occurred, testified at trial. According to Jimenez, he was in his room when Montano

called to him for help. He came out of his room and found Montano holding the child in

his arms.      The child was unconscious and unresponsive.                      Jimenez testified that

Montano told him that the child had drowned; Jimenez noticed that the baby was dry. He

called 911.

        Emergency personnel arrived to find Montano sitting on the couch holding the


        2 As this is a memorandum opinion and the parties are familiar with the facts and all issues of law

presented by this case are well settled, we will not recite the facts or the law here except as necessary to
advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
                                                     2
unconscious boy. They noticed a white frothy substance coming from the child’s nostrils.

Because they were responding to a drowning call, the emergency personnel testified that

they thought the child’s dryness was unusual. According to the law enforcement officers

who responded to the call, the bathtub was dry, as was everything around the tub. The

officers were unable to find wet clothes or towels, other than soiled diapers. Montano

could not explain why the baby was dry, but claimed that he changed the child’s clothes

after finding him unresponsive. This testimony described Montano as acting “normal”

and “[a]s if nothing had happened.” A day later, the child died in the hospital.

       The child’s autopsy revealed six impact sites on different parts of his head that

caused bleeding into the subdural region of his brain. Both of the child’s eyes had

hemorrhages, and he had blood in his skull. According to the autopsy report, the child’s

cause of death was blunt force trauma to the brain, consistent with someone repeatedly

hitting the baby’s head against a hard object. Ana Lopez, M.D., who worked for the

Harris County medical examiner’s office and who performed the child’s autopsy, testified

that there was no evidence that the child died from drowning. She also testified that

while “a fall is [usually] a one-time blunt trauma force, not multiple areas,” her autopsy in

this case revealed six impact sites on different parts of the child’s head that were so

severe they caused bleeding into the subdural region of his brain. The medical examiner

ruled the child’s death a homicide.

                               II.    RULE 602 CHALLENGE

       By his first issue, Montano contends that the trial court abused its discretion by

allowing witnesses to testify as to things about which they did not have personal

knowledge over his speculation objection. See TEX. R. EVID. 602 (setting out that a
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witness may not testify to a matter unless there is sufficient evidence to support a finding

that the witness had personal knowledge of the matter). Montano asserts that there was

no evidence provided regarding any personal knowledge either witness had of him prior

to the encounters that occurred that day and that neither witness was qualified to offer

testimony or evidence as to his demeanor, emotions, or lack thereof in this case.

       Specifically, Montano complains of certain trial testimony provided by Phillip

Joseph Roy, an Engine Operator with the Conroe Fire Department who was a first

responder in this case, and by Christie Alexander, a paramedic with the Montgomery

County Hospital District who provided emergency medical treatment to the child at the

scene. Roy testified, in relevant part, as follows:

       Q.     And when you walked into the room, did you see an adult in the
              room?

       A.     Yes. He was sitting on the couch with a blanket and a pillow.

       Q.     So he was sitting on the couch facing the front door?

       A.     Yes.

       Q.     And was the child with him?

       A.     Yeah. He was holding him in his lap.

       Q.     Can you describe—show the jury how he was holding him in his lap?

       A.     Like he was cradling a baby, I guess.

       Q.     Was he performing any kind of emergency—

       A.     No. He was just holding the baby, yes.

       Q.     Does 911 coach people on how to perform CPR?

       A.     Yes.

                                             4
Q.    Was he doing that?

A.    No.

Q.    So when you get there and you see him holding the baby on the
      couch, what do you do?

A.    Josh and I grabbed the baby, checked for life signs and checked for
      a pulse and checked for breathing.

      ....

Q.    That person [Montano] who is sitting on the couch, describe his
      demeanor for the jury.

A.    Calm. You know, I have seen panic, especially when it is a child.
      Any parent is going to definitely have a different state of being than
      he had. It was like any other day.

      [Defense Counsel]. Objection; speculation on the part of the part of
      the witness.

      Court.               Overruled. I will allow it.

      ....

Q.    Did his demeanor strike you as odd in that situation?

A.    Yes.

Q.    Was he showing any emotion at all?

A.    No.

Alexander provided the following testimony, about which Montano complains:

Q.    And when you went into the home, what did you see?

A.    We walked—you have to go into stairs into a room. It was a living
      room. I remember there were two couches kind of at an angle like
      this. There was a TV-type entertainment center here. And then to
      the left of us walking in, there would be the kitchen.

Q.    And on the floor in the living room, did you see any people there?

                                     5
A.   Yes. The patient was lying on the floor, and two firefighters were—
     one was performing CPR and one was attempting to bag or give air
     to the patient through a bag valve mask.

     ....

Q.   And did you notice the person you-all were referring to as the
     stepfather or the male who had the child? Did you notice him?

A.   Yes, absolutely.

Q.   What did you notice about him?

A.   He was sitting on the far couch. It would be at the back of the room
     that we were sitting in. He was sitting to the left all the way with the
     arm chair—you know, the armrest to the right of him, arm to the right,
     kind of laying back this way in an almost lounge position.

Q.   Why do you remember that so specifically?

A.   Because it bothered me.

Q.   Why did it bother you?

A.   I can't even imagine if—and, of course, at this point, I didn't know
     who he was to the child.

     [Defense Counsel]. Objection; this calls for speculation on the part of
     the witness, Judge.

     Court.               Overruled.

A.   I couldn't imagine any adult who knew this child and was watching
     lifesaving measures being performed on the child not either having
     any emotion—I mean, I understand that people deal with different
     things different ways.     But didn't—was not helpful, was not
     forthcoming with information.

Q.   Now . . . to be fair, was it your understanding that this man did not
     speak English?

A.   That is what I was told. He did look at me and say, "I don't speak
     English."


                                    6
A.    Standard of Review and Applicable Law

      The standard of review for a trial court’s evidentiary rulings is an abuse of discretion

standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not

disturb the trial court’s ruling if it is "within the zone of reasonable disagreement."

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). We will uphold the

ruling if it is reasonably supported by the record and correct on any theory of law

applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

      Rule 602 provides that “[a] witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge of the

matter.” TEX. R. EVID. 602. “Evidence to prove personal knowledge may, but need not,

consist of the testimony of the witness.” Id.

B.    Discussion

      In this case, the complained-of testimony concerned Roy’s and Alexander’s

personal observations of events. Both witnesses testified as to various matters that

occurred when they arrived on the scene, including observations of people who were

present.     The witnesses’ testimony regarding Montano’s physical demeanor and

emotions—that he appeared calm, was sitting or lounging on the couch cradling the child,

not performing CPR, and showing no emotion—was based on observations of Roy and

Alexander.

      We conclude that the record reasonably supports the trial court’s ruling that Roy

and Alexander had sufficient personal knowledge under rule 602 to provide testimony

regarding Montano’s demeanor and emotions at the time of their observations. See

Willover, 70 S.W.3d at 845; see also TEX. R. EVID. 602. The trial court did not abuse its
                                             7
discretion in that regard. See Powell, 63 S.W.3d at 438. We overrule Montano’s first

issue.

                           III.   UNADJUDICATED EXTRANEOUS ACTS

         By his second issue, Montano complains of the trial court’s failure to make a

threshold determination as to the admissibility of testimony regarding unadjudicated

extraneous offenses during the punishment phase of his trial. But Montano failed to

preserve any complaint regarding the admission of extraneous acts during punishment

because he did not raise an objection or obtain a ruling thereon in the trial court. See

TEX. R. APP. P. 33.1(a).

         At the start of the punishment phase, Montano noted that the State planned to

question witnesses about some unadjudicated extraneous offenses and suggested that

the State had to prove up those offenses beyond a reasonable doubt prior to admitting

them before the jury. The trial court responded that the State did not have to do so

outside the presence of the jury. Following this exchange, the State questioned three

witnesses. Each witness discussed events that could be described as extraneous bad

acts committed by Montano. Montano did not object to their testimony, and he did not

re-urge the trial court to make a threshold determination of admissibility. Montano failed

to preserve any error by the trial court in admitting testimony regarding his unadjudicated

bad acts for our review. See id. We overrule Montano’s second issue.

                IV.    ASSESSMENT OF ATTORNEY’S FEES AGAINST MONTANO

         Montano argues, by his third issue, that the court abused its discretion when it

assessed attorney’s fees to Montano, an indigent offender. Although the record does

not reflect an express finding of Montano’s indigence, the trial court appointed counsel to
                                             8
represent him. See TEX. CODE CRIM. PROC. ANN. art. 1.051 (West, Westlaw through 2013

3d C.S.).

       Article 26.05(g) of the code of criminal procedure provides trial courts with

discretionary authority to order reimbursement of appointed attorney’s fees when the

“defendant has financial resources that enable him to offset in part or in whole the costs

of the legal services provided[.]” See id. art. 26.05(g) (West, 2011 Westlaw through 2013

3d C.S.). Before doing so, however, the trial court must hear evidence and determine

whether a material change in the defendant’s financial circumstances has occurred since

his initial declaration of indigence. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.

App. 2010). The trial court made no such determination in this case. See id.

       In the absence of evidence to demonstrate Montano’s financial resources to offset

the costs of legal services, the State concedes, and we agree, that the trial court erred in

assessing attorney’s fees against Montano, who presumably remained indigent. See id.

We sustain Montano’s third issue.

                                     V. CONCLUSION

       The Court modifies the trial court's judgment to delete the $5,040.00 in attorney's

fees assessed against Montano. We affirm the trial court's judgment as modified. See

TEX. R. APP. P. 43.2(b).

                                                               NELDA V. RODRIGUEZ
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 15th
day of January, 2015.

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