                                      NO. 07-09-0009-CR
                                      NO. 07-09-0010-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL C

                                          MAY 20, 2010




                     CHRISTOPHER DEMONT SMITH, APPELLANT

                                                v.

                            THE STATE OF TEXAS, APPELLEE



              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

            NOS. 57,392-A & 57,393-A; HONORABLE HAL MINER, JUDGE



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                  MEMORANDUM OPINION


       Appellant, Christopher Demont Smith, was convicted by a jury of one count of

indecency with a child1 and three counts of aggravated sexual assault of a child2 and


1
See Tex. Penal Code Ann. § 21.11(a)(1) Vernon Supp. 2009).
2
See Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2009).
sentenced to four periods of confinement.3 In addition to the periods of incarceration

ordered, each judgment ordered Appellant "to pay all fines, court costs, and restitution

as indicated above." In each case, the judgment was blank as to "Court Costs." By six

issues, Appellant contests: (1) the legal sufficiency of the evidence; (2) the factual

sufficiency of the evidence of indecency with a child; and (3) aggravated sexual assault;

(4) whether the trial court violated Appellant's Sixth Amendment right to confrontation;

and, (5) & (6) the trial court's assessment of court-appointed attorney’s fees. We modify

the trial court's judgment in Cause No. 57,392-A to clarify that payment of $5,000 in

court-appointed attorney's fees is not a part of the court costs ordered in this case and

affirm the judgment as modified. The judgment in Cause No. 57,393-A is affirmed.


        Issue One -- Legal Sufficiency of the Evidence


        Appellant was charged with sexually abusing S.N.B. at a time when she was five

years old. Appellant contends the lack of physical evidence of sexual abuse during an

examination of S.N.B. by Dr. Rebecca Hough, and the subsequent appearance of

physical evidence of sexual abuse at a later examination, when coupled with his lack of

access to the child during that intervening period, conclusively proves that any sexual

abuse to the child was perpetrated by someone other than him.


3
 Appellant was originally charged with two counts of indecency with a child in Cause No. 57,392-A, and
three counts of aggravated sexual assault of a child in Cause No. 57,393-A. In Cause No. 57,392-A, the
jury found Appellant guilty of count 1 and sentenced him to five years confinement. The trial court issued
an instructed verdict of not guilty as to count two. In Cause No. 57,393-A, the jury found Appellant guilty
of all three counts of aggravated sexual assault and sentenced him to sentences of thirty-five years,
thirty-five years, and fifteen years respectively. The trial court ordered that the five year sentence be
served concurrent to any other period of confinement, and that the remaining sentences be served
consecutively.

                                                    2
       A.     Standard of Review


       When conducting a legal sufficiency review of the evidence to support a criminal

conviction, we view the evidence in the light most favorable to the verdict and determine

whether any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005).

We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of

any witnesses, as this is the function of the trier of fact. See Dewberry v. State, 4

S.W.3d 735, 740 (Tex.Crim.App. 1999).            Instead, we determine whether both the

explicit and implicit findings of the trier of fact are rational by viewing all the evidence

admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828

S.W.2d 418, 422 (Tex.Crim.App. 1992). In so doing, we resolve any inconsistencies in

the evidence in favor of the adjudication.        Matson v. State, 819 S.W.2d 839, 843

(Tex.Crim.App. 1991).


       B.     Dr. Hough's Testimony


       Dr. Hough testified she first saw S.N.B. on October 2, 2007, for the purpose of

determining whether S.N.B. had a urinary tract infection. Dr. Hough testified S.N.B.'s

physical examination was limited to checking her heart and lungs. She did not testify to

any examination of S.N.B.'s genitalia.


       At a second visit on October 19, 2007, Dr. Hough examined S.N.B. to determine

why she continued to wet her pants. During this examination, Dr. Hough examined

                                             3
S.N.B.'s vaginal area. She found evidence of sexual abuse, i.e., bruising, blister-type

lesions, and hardened tissue. Dr. Hough testified the hardened mass of tissue indicated

damage over time or chronic damage. When Dr. Hough asked S.N.B. whether anyone

touched her inappropriately, S.N.B. named Appellant. S.N.B. also told Dr. Hough that

Appellant "put where he pees in where she pees," and, "[w]hen she told him no, he hit

her, and he's done this many times." Dr. Hough was not asked, and did not offer, any

opinion regarding when S.N.B. might have suffered the trauma she described.


       Having reviewed the entire record, we find no evidence indicating that the trauma

discovered by Dr. Hough during the second examination occurred exclusively between

the time she first examined S.N.B. and the second examination.       Furthermore, even if

Dr. Hough's testimony established that S.N.B. was sexually assaulted during that

period, that fact does not mutually exclude the possibility that Appellant assaulted her

during some other period. The evidence does show that S.N.B. named Appellant in

outcries of sexual abuse made to Dr. Hough, Kim Hardy--her grandmother, and Becky

O'Neal, a Sexual Assault Nurse Examiner, who also found evidence of sexual abuse

when she examined S.N.B.       This evidence is legally sufficient to support the jury's

verdict.   See Castillo v. State, 913 S.W.2d 529, 535 n.3 (Tex.Crim.App. 1995);

Rodriguez v. State, 955 S.W.2d 171, 174 (Tex.App.--Amarillo 1997, no pet.). See also

Coronado v. State, No. 07-08-0496-CR, 2010 Tex. App. LEXIS 2401, at *9 (Tex.App.--

Amarillo March 31, 2010, no pet. h.). Accordingly, we overrule Appellant's first issue.




                                            4
Issues Two and Three -- Factual Insufficiency


         A.    Standard of Review


         When conducting a factual sufficiency review, we examine all the evidence in a

neutral light and determine whether the trier of fact was rationally justified in finding guilt

beyond a reasonable doubt. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.

2007), cert. denied, 552 U.S. 920, 128 S.Ct. 282, 169 L.Ed.2d 206 (2007); Watson v.

State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).            We give deference to the fact

finder's determination when supported by the record, and cannot reverse a conviction

unless we find some objective basis in the record demonstrating that the great weight

and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at

417. The criminal verdict will be set aside "only if the evidence is so weak that the

verdict is clearly wrong and manifestly unjust, or the contrary evidence so strong that

the standard of proof beyond a reasonable doubt could not have been met." Garza v.

State, 213 S.W.3d 338, 343 (Tex.Crim.App. 2007). In addition, the fact finder is entitled

to judge the credibility of the witnesses and may choose to believe all, or some, or none

of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.

1991).


         Additionally, as directed by the Texas Court of Criminal Appeals, when

conducting a factual sufficiency review, we must include a discussion of the most

important and relevant evidence that supports the appellant's complaint on appeal.

Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). This does not, however,

mean that we are required to discuss all evidence admitted at trial. See id. See also
                                              5
Roberts v. State, 221 S.W.3d 659, 665 (Tex.Crim.App. 2007). In that respect, Appellant

contends the State's evidence of indecency with a child is factually insufficient because:

(1) S.N.B.'s testimony at trial was inconsistent; (2) neither Dr. Hough nor the SANE

nurse swabbed S.N.B. for DNA evidence; (3) Hardy's testimony was biased against

Appellant because of his race; and (4) the police did not interview S.N.B.'s

grandparents.


       B.     Indecency with a Child


       A person commits the offense of indecency with a child if a person engages in

sexual contact with the child or causes the child to engage in sexual contact. Tex.

Penal Code Ann. § 21.11(a)(1) (Vernon Supp. 2009). The term "sexual contact" means

any of the following acts if committed with the intent to arouse or gratify the sexual

desire of any person; "any touching by a person, including touching through clothing, of

the anus, breast, or any part of the genitals of a child," id. at § 21.11(c)(1), or "any

touching of any part of the body of a child, including touching through clothing, with the

anus, breast, or any part of the genitals of a person." Id. at § 21.11(c)(2).


       In addition to Dr. Hough's testimony described above, Hardy's and S.N.B.'s

testimony corroborated Dr. Hough's account of her outcry.             S.N.B. also testified

Appellant touched her in her "special place" and "it hurt."        O'Neal, the nurse who

conducted S.N.B.'s SANE examination, testified S.N.B. told her that Appellant

"touch[ed] her pee pee," "put his mouth on [her] pee pee," and "put a nail in [her] butt

and put a seed in her butt."      O'Neal testified S.N.B.'s SANE examination showed

evidence of sexual abuse in her vaginal area and her anus showed immediate dilation,
                                             6
indicating repeated penetration. Dr. Hough's examination corroborated the results of

O'Neal's examination with regard to S.N.B.'s vaginal area.


       Any inconsistency between S.N.B.'s prior outcries and her testimony at trial went

to her credibility.   Based upon the evidence recounted above, the jury could have

reasonably believed that Appellant engaged in sexual contact with S.N.B. even though

some of S.N.B.'s trial testimony was inconsistent with her earlier out-of-court statements

and her in-court testimony. See, e.g., In re A.B., 133 S.W.3d 869, 873-74 (Tex.App.--

Dallas 2004, no pet.); Washington v. State, 127 S.W.3d 197, 204 (Tex.App.--Houston

[1st Dist.] 2003, pet. dism'd). Moreover, our evaluation of the evidence "should not

substantially intrude upon the jury's role as the sole judge of the weight and credibility of

witness testimony." Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996), cert.

denied, 522 U.S. 832, 118 S.Ct. 100, 39 L.Ed.2d 54 (1997). Accordingly, to the extent

Appellant claims the evidence is factually insufficient because S.N.B.'s prior statements

were not credible, we hold that the evidence in support of the jury's verdict was not so

weak as to render the verdict clearly wrong or manifestly unjust.


       Appellant does not cite any case law or other authority in support of his

contention that evidence of indecency with a child is factually insufficient in the absence

of the victim being swabbed for DNA. Thus, this contention was insufficiently briefed,

and therefore, waived. Tex. R. App. P. 38.1(h). See Cardenas v. State, 30 S.W.3d

384, 393 (Tex.Crim.App. 2000).


       Neither does Appellant cite any case law or other authority in support of his

contention that evidence of indecency with a child is factually insufficient in the absence
                                             7
of the police interviewing the victim's guardian or grandparents. This contention was

also insufficiently briefed, and therefore, waived.      Tex. R. App. P. 38.1(h).       See

Cardenas, 30 S.W.3d at 393.


       Furthermore, to the extent that this portion of Appellant's argument is that the

evidence is insufficient because S.N.B.'s grandparents were racially biased, whether a

witness's testimony is racially motivated goes to the credibility of the witness and the

weight to be given to their testimony. The jury is the "exclusive judge of the credibility of

witnesses," and the reconciliation of conflicts in the testimony is also within the

"exclusive province of the jury.” See Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon

2007); id. at art. 38.04 (Vernon 1979); Jones, 944 S.W.2d at 647. By rendering a guilty

verdict, the jury apparently chose to accept the truthfulness of Hardy's testimony that

S.N.B.'s behavior markedly changed after she visited Appellant and his wife, as well her

account of S.N.B.'s outcry to Dr. Hough. Washington, 127 S.W.3d at 204. The jury

could have also believed Hardy's testimony that, even though she "didn't like the idea"

of her daughter being with a black man, she "just accepted it and went about [her]

business."


       Accordingly, we find the State's evidence in support of the jury's verdict of guilty

as to the offense of indecency with a child was not so weak as to render the verdict

clearly wrong or manifestly unjust. Appellant's second issue is overruled.




                                             8
C.     Aggravated Sexual Assault


       Appellant contends the State's evidence of aggravated sexual assault at trial was

also factually insufficient because: (1) S.N.B.'s testimony was inconsistent; (2) terms

used by S.N.B. in her outcry were unexplained; and (3) S.N.B.'s outcry to Dr. Hough

was made while Hardy was in the room.


       A person commits the offense of aggravated sexual assault if the person,

intentionally or knowingly, causes the penetration of the anus or sexual organ of a child,

younger than 14 years of age, by any means, or causes the sexual organ of a child to

contact or penetrate the mouth, anus, or sexual organ of another person, including the

actor. Tex. Penal Code Ann. § 22.021(a)(1)(B) & (a)(2)(B) (Vernon Supp. 2009).


       S.N.B.'s outcry statement to Dr. Hough is described above. Hardy's and S.N.B.'s

testimony corroborated Dr. Hough's account of S.N.B.'s outcry, O'Neal's testimony

supported S.N.B.'s version of the events, and Dr. Hough's examination corroborated the

results of O'Neal's SANE examination with regard to the existence of trauma to S.N.B.'s

vaginal area. Any inconsistency between S.N.B.'s prior outcries and her testimony at

trial went to her credibility. Based upon the evidence recounted above, the jury could

reasonably have believed that Appellant committed the offense of aggravated sexual

assault. See, e.g., In re A.B., 133 S.W.3d at 873-74; Washington, 127 S.W.3d at 204.

The fact that S.B.N.'s testimony was inconsistent does not make it factually insufficient.


       Appellant next contends the evidence was factually insufficient because there

were terms in S.N.B.'s outcry to O'Neal that were unexplained by S.N.B. In sexual

                                             9
abuse cases, a child victim may testify using language appropriate for his/her age to

describe the sexual assault because "one cannot expect the child victims of violent

crimes to testify with the same clarity and ability as is expected of mature and capable

adults;" Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990) (en banc), and a

child victim's outcry statement alone can be sufficient to support a conviction for

aggravated assault. Coronado, 2010 Tex. App. LEXIS 2401 at *9; Kimberlin v. State,

877 S.W.2d 828, 831 (Tex.App.--Fort Worth 1994, pet. ref'd) (citing Rodriguez v. State,

819 S.W.2d 871, 873 (Tex.Crim.App. 1991) (en banc). Further, putting aside the terms

contested by Appellant, there remains sufficient evidence upon which a jury could

reasonably base its verdict.


      Finally, Appellant attempts to make a connection between S.N.B.'s outcry to Dr.

Hough, made while Hardy was in the room, and S.N.B.'s testimony that "Momma Kim

[Hardy] told her what to say" and she "[didn't] know what [Hardy] told her." Whether this

testimony affected the verdict was a matter left to the jury's sound discretion. The fact

finder is entitled to make these decisions and may choose to believe all, some, or none

of the testimony presented. Chambers, 805 S.W.2d at 461. By rendering a guilty

verdict, the jury apparently chose to accept the truthfulness of S.N.B.'s testimony.

Washington, 127 S.W.3d at 204.


      Accordingly, we find the State's evidence in support of the jury's verdict of guilty

of aggravated sexual assault of a child was not so weak as to render the verdict clearly

wrong or manifestly unjust. Appellant's third issue is overruled.



                                            10
Issue Four -- Sixth Amendment


        Appellant next contends the trial court violated his Sixth Amendment right to

confront his accuser by permitting the State's prosecutor to stand between S.N.B. and

Appellant during a portion of her testimony. During the State's direct examination of

S.N.B., the State's attorney requested permission from the trial court to stand between

S.N.B. and Appellant.          The State's attorney stated that he did "not want to block

[Appellant's] view but [S.N.B.] keeps looking over at him and I'm concerned now. . . ."

The trial court granted the State's request over Appellant's Sixth Amendment objection

based on Crawford.4


        The Sixth Amendment provides, in relevant part, that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him. U.S. Const. amend. VI.5 The Confrontation Clause reflects a preference

for face-to-face confrontation at trial, but that preference must occasionally give way to

considerations of public policy and the necessities of the case. Maryland v. Craig, 497

U.S. 845, 849, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Coronado, 2010 Tex. App.

LEXIS 2401 at *9 (construing the public policy considerations of article 38.071, section

2(b) of the Texas Code of Criminal Procedure, as an appropriate constitutional
4
 In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States
Supreme Court held that in-court testimony or its functional equivalent (i.e., "material such as affidavits,
custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pre-
trial statements that declarants would reasonably expect to be used prosecutorially") may not be used as
evidence against an accused unless the accused has an opportunity to confront and cross-examine the
maker of the statement. Id. at 51.
5
 This right to confrontation was made applicable to the states by the Due Process Clause of the
Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923
(1965).

                                                    11
accommodation in lieu of face-to-face confrontation). The United States Supreme Court

has stated that an exception to the right of face-to-face confrontation exists when the

State shows that a special procedure is necessary to protect child witnesses from the

trauma of testifying in court. See Craig, 497 U.S. at 855.6


        Here, S.N.B. appeared at trial and was subject to cross-examination. Appellant

does not assert that she was hidden from the jury's view or from his counsel's view at

any time while she was testifying. Rather, she testified under oath in view of the jury

while Appellant's counsel was given an unfettered opportunity to cross-examine S.N.B.

while Appellant was in her full view. Accordingly, we cannot say Appellant was denied

his constitutional right to confrontation by the limited accommodation made during the

State's direct examination. See Moore v. State, 169 S.W.3d 467, 470 n.8 (Tex.App.--

Texarkana 2005, pet. ref'd) ("[W]hen a witness appears at trial and is subject to cross-

examination, the Confrontation Clause is not violated."). See also Palmer v. State, 716

S.W.2d 174, 176-77 (Tex.App.--Houston [14th Dist.] 1986, pet. ref'd), motion for reh'g

denied, 741 S.W.2d 451 (Tex.Crim.App. 1987) (per curiam). Appellant's fourth issue is

overruled.




6
 The determination of whether alternative forms of testimony are necessary should be made on a case-
by-case basis. See Craig, 497 U.S. at 855. Contrary to Appellant's contention, Texas Code of Criminal
Procedure article 38.071 is inapplicable here because the article "applies only to a hearing or proceeding
in which the court determines that a child . . . would be unavailable to testify in the presence of the
defendant. . . ." Tex. Code Crim. Proc. Ann. art. 38.071 § 1 (Vernon Supp. 2009). Here, S.N.B. did testify
in Appellant's presence.

                                                   12
Issue Five and Six -- Court-Appointed Attorney’s Fees


        By issues five and six, Appellant makes a two prong attack on what he contends

is the erroneous assessment of attorney's fees in this case.                           The first prong of

Appellant's attack is that a trial court may not order a criminal defendant to repay the

State for the costs of a court-appointed attorney without making a determination, based

upon competent evidence, that the defendant has financial resources that enable him to

offset in part or in whole the costs of legal services provided. In support of this prong of

his attack, Appellant relies heavily upon this Court's decision in Mayer v. State, 274

S.W.3d 898 (Tex. App.--Amarillo 2008) aff’d, No. PD-0069-09, 2010 Tex.Crim.App. LEXIS

100 (Tex.Crim.App. March 24, 2010). The second prong of Appellant's attack is that the

trial court erred because it did not orally pronounce the assessment of attorney’s fees at

sentencing, nor did it declare the precise amount of attorney's fees in its written

judgment. In support of this prong of his attack, Appellant relies upon the decision in

Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) (holding that a

judgment assessing an undetermined amount of attorney's fees was error where the

trial court did not order the Defendant to pay a specific amount of attorney's fees either

in its oral pronouncement or its written judgment).                   In response, the State does not

address the second prong; but, instead, urges this Court to reconsider its judgment and

opinion in Mayer.7




7
At the time the State filed its brief it did not have the benefit of the Court of Criminal Appeals’s decision in
Mayer v. State, No. PD-0069-09, 2010 Tex.Crim.App. LEXIS 100 (Tex.Crim.App. March 24, 2010).

                                                      13
A.      Reimbursement of Attorney's Fees


        Appellant contends the trial court erred by ordering him to repay the State for the

costs of his court-appointed attorney. Under article 26.05 of the Texas Code of Criminal

Procedure, a trial court has authority to order reimbursement of appointed attorney’s

fees if the court determines, based upon sufficient evidence, that a defendant has

financial resources that enable him to offset, in part or in whole, the costs of the legal

services provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009).

The record before us does not contain a determination or finding by the trial court that

Appellant had any financial resources or was "able to pay" the appointed attorney’s

fees.


        The record reflects that on March 26, 2008, Appellant filed an affidavit, including

relevant financial information, wherein he requested the appointment of counsel for

representation at trial. On March 27, 2008, the trial court granted his request and

appointed counsel. Again, on December 18, 2008, Appellant filed a Pauper's Oath on

Appeal petitioning the trial court to appoint appellate counsel on appeal, and again on

January 5, 2009, the trial court determined he was entitled to that relief, ordered the

court reporter to prepare a reporter's record, and appointed appellate counsel to assist

Appellant in the presentment of his appeal. Unless a material change in his financial

resources occurs, once a criminal defendant has been found to be indigent, he is

presumed to remain indigent for the remainder of the proceedings. Tex. Code Crim.

Proc. Ann. art. 26.04(p) (Vernon Supp. 2009). Therefore, while there is no evidence of

record demonstrating a material change in Appellant's financial resources, there was

                                            14
ample evidence demonstrating that, before trial and immediately following rendition of

judgment, Appellant was indigent and qualified for court-appointed counsel.


       Without evidence demonstrating Appellant's financial ability to offset the costs of

legal services, any order requiring Appellant to reimburse the State for the costs of his

court-appointed attorney would be error. See Mayer v. State, No. PD-0069-09, 2010

Tex.Crim.App. LEXIS 100 (Tex.Crim.App. March 24, 2010). Accordingly, Appellant's

fifth issue is sustained.


       B.     Assessment of Undetermined Amount of Attorney's Fees


       The second prong of Appellant's attack is premised on the argument that the trial

court did not order Appellant to pay a specific amount of attorney's fees, either by

pronouncement at sentencing or in the written judgment. Even though the State does

not address this argument, the validity of Appellant's premise is incorrect. The judgment

in question appears to be a form customarily used by the district courts of Potter

County, Texas. The introductory summary statements contained on the first page of the

judgment state:

   ________________________________________________________________

   Fine:              Court Costs:        Restitution:         Restitution Payable to:
   N/A                $                   $ N/A          __    Victim__ Agency/Agent


       Page two of the judgment contains the statement: "The Court Orders Defendant

to pay all fines, court costs, and restitution as indicated above." (Emphasis in original).

Even though the judgment in question shows a blank for court costs, the Bill of Costs

contained in the Clerk's Record indicates that Appellant was required to pay $5,000 for
                                            15
court-appointed attorney's fees in Cause No. 57,392-A. The Bill of Costs in Cause No.

57,393-A does not include an amount for attorney's fees. A cost indicated on a certified

Bill of Costs prepared by the District Clerk can be collected from a criminal defendant.

See generally Tex. Code Crim. Proc. Ann. art. 103.001, et seq. (Vernon 2006).

Therefore, to the extent that the judgment does order Appellant to pay court costs, we

find that it does order him to pay a definite and defined amount of attorney's fees.

Appellant's sixth issue is overruled.


                                        Conclusion


       Having determined that the trial court erred by requiring Appellant to reimburse

the State for the costs of his court-appointed attorney, we modify the judgment in Cause

No. 57,392-A to clarify that the order to pay court costs does not include a requirement

that he pay the $5,000 in attorney's fees contained in the Bill of Costs. As modified, the

trial court’s judgment in Cause No. 57,392-A is affirmed. The trial court’s judgment in

Cause No. 57,393-A is affirmed.


                                                       Patrick A. Pirtle
                                                           Justice




Do not publish.




                                            16
