                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00048-CR

CLINTON TYNES,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2010-1272-C1


                          MEMORANDUM OPINION


      Appellant, Clinton Tynes, was charged by indictment with two counts of

aggravated robbery, a first-degree felony. See TEX. PENAL CODE ANN. § 29.03(a)(1),

(a)(3), (b) (West 2011). A jury convicted Tynes on both counts and assessed punishment

at sixty years’ incarceration in the Institutional Division of the Texas Department of

Criminal Justice with a $10,000 fine for each count. The trial court ordered the imposed

sentences to run concurrently. In three issues, Tynes argues that: (1) the evidence is

insufficient to support his conviction; (2) the trial court abused its discretion in
admitting the written statement of a witness, Adella Stanford; and (3) the evidence is

insufficient to support the assessment of court-appointed attorney’s fees because Tynes

is indigent. We affirm as modified.

                                    I.     BACKGROUND

        This appeal pertains to an incident that transpired on the evening of December

21, 2009, at the home of Scott and Sheila Corbin. Sheila had just returned home with her

husband, Scott, after picking up their daughter from the movie theater when she was

approached by two men.        Scott had already gone inside the house, and Sheila, a

disabled woman who used a walker, had gone back to the car to retrieve her cell phone

and debit card.    The two men pulled her out of the car, pushed her down, and

demanded money. One of the men had a knife in his hand, and the other had a gun.

Sheila testified that she saw a third man, but it was hard to identify the males because it

was dark and the assailants wore masks. Sheila informed the men that she did not have

any money. The men then demanded that she give them her cell phone and her keys,

which she did. Sheila tried to stand up using her walker. One of the men, who Sheila

described as wearing a yellow-hooded sweatshirt, had a gun pointed at her head as she

stood up. At this time, Scott came to the glass door to see what was taking Sheila so

long. The man with the gun placed the gun to Sheila’s back and pushed her up the

steps towards the house. The third male was instructed to “go out front and keep

watch” while the other two who had weapons entered the Corbins’ house.

        Upon entering the house, the men demanded that the Corbins give them their

jewelry, money, and Sheila’s purse. Sheila told the men that she only had $100 in her

Tynes v. State                                                                       Page 2
account, and the man with the gun responded by hitting her on the head with the butt

of the gun and saying, “Bitch, I’m going to clean your account out.” The man with the

gun later pushed Sheila to the ground. While on the ground, Sheila observed the

second male, who had a knife in his hand and wore a black-hooded sweatshirt, assault

Scott. Sheila described the situation as follows:

               The guy in the black hoody had my husband in the kitchen, just
        kept poking at him with a real cheap black-handled steak knife, just kept
        jabbing him in the face. My husband is, like, jumping around, you know.
        They kept saying, “Give me your money, give me your jewelry.” My
        husband is telling him, “We don’t have any money. We don’t have any
        jewelry.” I’m laying [sic] there on the floor, and I had on two gold chains
        and then two gold rings, and he bent down—the guy holding the gun on
        me bent down and ripped them off my neck, and apparently had dropped
        one—had dropped a necklace and half the chain. Then he ripped my
        rings off. Then the other guy kept, you know, insisting, “Where is your
        money, where is your jewelry?” They kept saying, “Where is your
        purse?” I told them it was back in the back bedroom. I’m laying [sic]
        there on the floor with a gun to my head. You know, I’m listening to all
        this commotion going on. They forced my husband back to the—one guy
        forced my husband back to the back bedroom, and then I don’t know
        what all went on there, other than before they get to the hallway—my
        daughter is in the bathroom. My husband yells, you know, “Lock the
        door.” I don’t even think they knew she was there until he said that, and
        then they did try to force their way in, but they didn’t get in.

        Scott testified that, shortly after entering their house, the man in the yellow

hoody hit him in the face with his gun when Scott said, “We don’t have anything.” As a

result, Scott sustained lacerations to his head, which caused bleeding down his face. 1

Later, the man with the knife led Scott to a bedroom where they saw Sheila’s purse.

The assailant asked Scott, “What’s that,” and Scott “grabbed the purse and slung

        1 The State proffered photographs of both Sheila and Scott to document the injuries they
sustained during the robbery. Sheila had a laceration on her head, which was bleeding, bruising to her
neck from when one of the assailants ripped her necklaces off of her neck, and lacerations on her leg.
Scott had several lacerations on his forehead, which caused substantial bleeding down the side of his face.

Tynes v. State                                                                                      Page 3
everything . . . to try to scatter the contents to make things harder on them.” After

doing that, the assailant hit Scott with his hand and ordered Scott give up his wallet.

Scott complied, and he and the assailant traveled down the hallway of the house,

passing a bathroom. Knowing that his daughter was in the bathroom, Scott instructed

his daughter to lock the door. The assailant tried to break in to the bathroom, but he

was unsuccessful.

        Then, the assailant and Scott returned to the living room near where Sheila was

lying. Scott recounted that he was hit on the head with a gun once again. Thereafter,

the assailants threatened to kill the Corbins if they called the police, and subsequently

left the house in the Corbins’ car, a PT Cruiser, which had been already started by the

third male who was keeping watch. As the assailants backed down the driveway in the

Corbins’ car, they hit a tree and drove through a portion of the Corbins’ yard.

        Police were immediately called to the scene. Statements were taken, and the

Corbins were taken to the hospital for treatment. The Corbins’ PT Cruiser was found

less than half a mile away from the Corbins’ house.2 DNA tests were conducted on

various parts of the vehicle, including the inside handle of the driver’s-side car door

and the steering wheel. Comparing the DNA obtained from the Corbin’s vehicle with

buccal swabs taken from Tynes, police found Tynes’s DNA on the inside handle of the

driver’s-side door and on the steering wheel of the PT Cruiser. Both Scott and Sheila




        2 A photograph of the recovered PT Cruiser was admitted into evidence and revealed damage to
the rear of the vehicle, which resembled damage that would be associated with hitting a tree.

Tynes v. State                                                                               Page 4
testified that they did not know Tynes and that Tynes had never been a passenger in

their car before that night.

        Two days after the incident, police received a call from Adella Stanford

regarding various items found in her trash can. Among the items found in Stanford’s

trash can was Sheila’s wallet with her driver’s license and social security card and a

knife. DNA tests were conducted on the items found in Stanford’s trash can. Scientists

were unable to obtain sufficient DNA profiles from most of the items; however, Tynes’s

partial DNA profile was found on Sheila’s wallet, and the knife contained the partial

DNA profile of one of Tynes’s associates—Cameron Harrison.

        After recovering the items from her trash can, Stanford spoke with police.

Officer Rondell Blatche’ of the Waco Police Department testified, without objection, that

Stanford identified three males that could have put the items in her trash can. Stanford

told Officer Blatche’ that Cameron Harrison, Trey Matthews, and “another boy . . . she

knew as Clint” had been hanging around her house shortly after the robbery occurred

and were acting suspiciously. Officer Blatche’ then took a written statement from

Stanford, wherein she stated the following:

                 On 12/21/09 at auround [sic] 9:00 p.m. or later[,] Adella Stanford
        was at 3700 N. 22nd when three guys by the name of Cameron Harrison,
        Trey Mathews [sic], and Clint where [sic] in my front yard acting
        suspicious and I told them to get off of my property. They had on blue
        jeans with hoodies wich [sic] one that stood out was yellow. When they
        left[,] they went walking back towards [P]ark [L]ake Dr.

Officer Blatche’ further testified that Stanford told him that one of the males that she

saw that night was wearing a black hoody and another was wearing a yellow hoody.


Tynes v. State                                                                        Page 5
According to Officer Blatche’, Stanford’s description of the males on her property that

evening matched the descriptions provided by the Corbins. Stanford also indicated that

she had seen Cameron, Trey, and Clint together many times and that their hanging out

“wasn’t nothing [sic] unusual.” Stanford testified that she knew Cameron, Trey, and

Clint because “[t]hey used to play with my boys, come to my house.”

        Tynes was subsequently indicted with two counts of aggravated robbery—one

count pertaining to Scott and the other pertaining to Sheila. See id. § 29.03(a)(1), (a)(3).

Tynes requested a court-appointed attorney, indicating that he was indigent. The trial

court concluded that Tynes was indeed indigent and appointed him counsel. Tynes

elected for a jury trial on guilt-innocence and punishment; trial commenced on

February 15, 2011.

        At the conclusion of the evidence, the jury convicted Tynes of the charged

offenses and assessed punishment at sixty years’ incarceration for each count. The trial

court ordered the sentences to run concurrently and certified Tynes’s right to appeal.

This appeal followed.

                          II.    STANFORD’S WRITTEN STATEMENT

        In his second issue, Tynes contends that the trial court abused its discretion in

admitting Stanford’s written statement because the probative value of the evidence was

outweighed by its prejudicial effect. In particular, Tynes argues that the evidence

“accomplished next to nothing that was legitimate, but it overly emphasized the

importance of hoodies in an otherwise paper-thin case.” The State counters that the

trial court properly overruled Tynes’s rule 403 objection. See TEX. R. EVID. 403. The

Tynes v. State                                                                        Page 6
State also asserts that even if it was error to admit the evidence, such admission was

harmless because the evidence was cumulative of other unobjected-to evidence.

        At trial, Stanford initially refused to admit that she made a written statement to

police. On appeal, the State characterizes Stanford as a “very uncooperative witness.”

Because she refused to admit to the truth of the statements made in her written

statement to police, the State proffered her written statement for admission into

evidence and for purposes of impeachment. The trial court admitted Stanford’s written

statement into evidence over Tynes’s rule 403 objections. See id.

        As noted above, Tynes argues on appeal that Stanford’s written statement should

not have been admitted because its probative value was outweighed by its prejudicial

effect. We conclude that any error in the admission of Stanford’s written statement was

harmless because the same evidence was introduced without objection several times

during the trial. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding

that any error in the admission of hearsay testimony was harmless in light of other

properly admitted evidence proving the same fact); see also Lane v. State, 151 S.W.3d 188,

193 (Tex. Crim. App. 2004) (“‘An error [if any] in the admission of evidence is cured

where the same evidence comes in elsewhere without objection.’”) (quoting Valle v.

State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)); Leday v. State, 983 S.W.2d 713, 718

(Tex. Crim. App. 1998) (“Our rule . . . is that overruling an objection to evidence will not

result in reversal when other such evidence was received without objection, either

before or after the complained-of ruling.”). In fact, when impeached with her written

statement, Stanford admitted, without objection, to the truth of the statements made in

Tynes v. State                                                                        Page 7
the document. Furthermore, Officer Blatche’ testified, without objection, that he took

Stanford’s written statement and testified about the statements Stanford made to him,

which mirrored the information contained in her written statement.

        The court of criminal appeals has specifically stated that, for an issue pertaining

to the admission of evidence to be preserved, a proper objection must be made “‘each

time the inadmissible evidence is offered or [appellant should] obtain a running

objection.’” Lane, 151 S.W.3d at 193 (quoting Valle, 109 S.W.3d at 509). Here, Tynes did

not object to each time the alleged inadmissible evidence was offered, nor did he obtain

a running objection. Therefore, based on the foregoing, we cannot say that Tynes has

demonstrated that the trial court abused its discretion in admitting Stanford’s written

statement into evidence. See Resendiz, 112 S.W.3d at 546; see also Moses, 105 S.W.3d at

627. We overrule his second issue.

                             III.   SUFFICIENCY OF THE EVIDENCE

        In his first issue, Tynes asserts that the evidence is insufficient to establish that

he: (1) threatened injury as a principal to the offense; (2) committed theft as a principal

to the offense; (3) caused bodily injury as a principal to the offense; (4) used or

possessed any weapon as a principal to the offense; (5) intended to be a party to any

offense; or (6) solicited, encouraged, aided, or attempted to aid in the commission of the

offense.

A. Standard of Review

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

Tynes v. State                                                                         Page 8
               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, No. AP-76,020, ___ S.W.3d ___, ___, 2011 Tex. Crim. App. LEXIS 1222, at

**43-44 (Tex. Crim. App. Sept. 14, 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 2792-93, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial

evidence are treated equally:        "Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Finally, it is well established that the factfinder is entitled to judge the credibility of

witnesses and can choose to believe all, some, or none of the testimony presented by the

parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).



Tynes v. State                                                                              Page 9
    B. Applicable Law

        The sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically-correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). “Such

a charge is one that accurately sets out the law, is authorized by the indictment, does

not unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997).

        As indicted in this case, a person is guilty of aggravated robbery if he “commits

robbery” and “uses or exhibits a deadly weapon.” TEX. PENAL CODE ANN. § 29.03(a)(2).

A person commits robbery “if, in the course of committing theft . . . and with intent to

obtain or maintain control of the property, he intentionally, knowingly, or recklessly

causes bodily injury to another or intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death.” Id. § 29.02(a) (West 2011). A

person commits theft if he “unlawfully appropriates property with intent to deprive the

owner of property.” Id. § 31.03(a) (West Supp. 2011).

        The jury charge also contained language pertaining to the law of the parties. A

person commits the offense as a party if, “acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense.” Id. § 7.02(a)(2) (West 2011). In determining

whether the evidence is sufficient to prove that a defendant participated as a party in

Tynes v. State                                                                       Page 10
committing an offense, we look to “events before, during, and after the commission of

the offense.” Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). If the evidence

shows that the defendant was present at the scene and encouraged the commission of

the offense by acts, words, or other agreement, the evidence is sufficient to convict

under the law of the parties. Wooden v. State, 101 S.W.3d 542, 547-48 (Tex. App.—Fort

Worth 2003, pet. ref’d). Further, evidence of flight from the scene and furtive behavior

is indicative of guilt. Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007); see also

Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

C. Discussion

         In the instant case, Tynes does not dispute that a robbery occurred. Instead,

Tynes contends that the evidence does not demonstrate that he participated in the

crime.

         We find that the record contains sufficient evidence implicating Tynes’s

involvement in the robbery. Specifically, the record demonstrates that two men, one

wearing a black-hooded sweatshirt and the other wearing a yellow-hooded sweatshirt,

confronted and assaulted the Corbins while taking, among other things, jewelry, credit

cards, Sheila’s wallet, and the Corbins’ PT Cruiser. During the commission of these

acts, the men used a knife and a handgun—items identified at trial as deadly weapons.

According to Sheila, a third male was instructed to remain outside the Corbins’ house to

serve as a lookout and as the getaway driver. After taking the property and assaulting

the Corbins, the men got into the Corbins’ PT Cruiser and drove away. However,

shortly thereafter, the car was abandoned, and Stanford observed three males

Tynes v. State                                                                         Page 11
congregating suspiciously on her property approximately fifteen minutes after the

robbery transpired. Stanford recalled that one of the males was wearing a yellow-

hooded sweatshirt and another was wearing a black-hooded sweatshirt—clothing that

matched the Corbins’ description of the clothing worn by the assailants. Stanford

identified the three males as Tynes and two of his associates, Matthews and Harrison.

Stanford was certain of their identities because the men were once friends of her

children. Thereafter, Stanford discovered several items in her trash can. Among the

items found were a knife that matched the description of the knife used in the

commission of the robbery and Sheila’s wallet, driver’s license, and social security card.

Police tested the items found in Stanford’s trash can and discovered that Tynes’s partial

DNA profile was on Sheila’s wallet, and the knife contained Harrison’s partial DNA

profile. The police also tested the abandoned PT Cruiser and discovered that Tynes’s

DNA was on the inside handle of the driver’s-side door and on the steering wheel.

Both Sheila and Scott denied knowing Tynes and testified that Tynes had never been a

passenger or driver in their PT Cruiser prior to the night of the incident.

        Nevertheless, Tynes contends that: (1) the stolen property found in Stanford’s

trash can could have been placed there by someone else; (2) there is no proof as to when

Tynes’s DNA was left inside the Corbins’ PT Cruiser; and (3) the State “proved nothing

more than presence.”      For several reasons, the evidence and governing case law

undermine Tynes’s arguments.

        First, we note that it was not incumbent upon the State to exclude “every

reasonable hypothesis other than guilt” for the evidence to be considered sufficient. See

Tynes v. State                                                                     Page 12
Geesa v. State, 820 S.W.2d 154, 157-61 (Tex. Crim. App. 1991), overruled on other grounds

by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000); see also Lopez v. State, 267

S.W.3d 85, 97-98 (Tex. App.—Corpus Christi 2008, no pet.) (citing Harris v. State, 133

S.W.3d 760, 763-65 (Tex. App.—Texarkana 2004, pet. ref’d); Richardson v. State, 973

S.W.2d 384, 387 (Tex. App.—Dallas 1998, no pet.) (“[T]he mere existence of an

alternative        reasonable      hypothesis        does        not       render       the

evidence . . . insufficient . . . . [E]ven when an appellant identifies an alternative

reasonable hypothesis raised by the evidence, the standard of review remains the

same.”); Orona v. State, 836 S.W.2d 319, 322 (Tex. App.—Austin 1992, no pet.)). Second,

no evidence was presented suggesting that someone else placed the Corbins’ personal

property in Stanford’s trash can. Further, both Sheila and Scott testified that Tynes had

never been inside their vehicle prior to the night of the incident; therefore, the jury was

rational to infer that Tynes’s DNA was left inside the PT Cruiser on the night of the

incident.     And finally, the knife found in Stanford’s trash can which matched the

description provided by the Corbins as the knife used in the robbery had Harrison’s

DNA on it, and Stanford observed:           (1) Harrison, Matthews, and Tynes acting

suspiciously on her property shortly after the incident; and (2) that two of the males

were wearing hooded sweatshirts that matched the assailants’ clothing descriptions

provided by the Corbins.

        Looking as we must to the events before, during, and after the incident, we

conclude that the jury was rational in determining that an aggravated robbery had been

committed and that Tynes was either one of the assailants who entered the Corbins’

Tynes v. State                                                                       Page 13
house or the lookout and driver. See TEX. PENAL CODE ANN. §§ 29.02(a), 29.03(a)(2),

31.03(a); see also Clayton, 235 S.W.3d at 780; Powell, 194 S.W.3d at 507; Guevara, 152

S.W.3d at 50; Wooden, 101 S.W.3d at 547-48. As such, we further conclude that the State

proved that Tynes was more than merely present at or near the scene of the crime and

that Tynes actively solicited, encouraged, directed, aided, or attempted to aid others in

the commission of the robbery. See TEX. PENAL CODE ANN. § 7.02(a)(2). Accordingly,

we affirm Tynes’s conviction under the law of the parties. See id.; see also Powell, 194

S.W.3d at 507; Wooden, 101 S.W.3d at 547-48. Tynes’s first issue is overruled.

                         IV.    COURT-APPOINTED ATTORNEY’S FEES

        In his third issue, Tynes complains that there is insufficient evidence to support

the trial court’s assessment of court-appointed attorney’s and investigator’s fees.

Specifically, Tynes argues that because he was determined to be indigent before trial,

the trial court improperly ordered him to pay $3,427.50 in court costs, which included

attorney’s fees in the amount of $2,998.50.

        For the purposes of assessing attorney’s fees, once an accused is found to be

indigent, he is presumed to remain so throughout the proceedings absent proof of a

material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p)

(West Supp. 2011); see also Mayer v. State, No. 10-10-00302-CR, 2011 Tex. App. LEXIS

1369, at *6 (Tex. App.—Waco Feb. 23, 2011, pet. ref’d) (mem. op., not designated for

publication). Furthermore, the record must reflect some factual basis to support the

determination that Tynes was capable of paying all or some of his attorney’s fees at the

time of the judgment. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011);

Tynes v. State                                                                     Page 14
Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see also

Stevenson v. State, No. 10-09-00358-CR, 2011 Tex. App. LEXIS 8302, at *3 (Tex. App.—

Waco Oct. 19, 2011, no pet. h.) (mem. op., not designated for publication).

        Here, the State concedes that there is insufficient evidence in the record to

support the assessment of court-appointed attorney’s and investigator’s fees against

Tynes. In such cases, the proper remedy is to reform the judgment by deleting the

attorney’s fees and investigator’s fees. See Mayer v. State, 309 S.W.3d 552, 557 (Tex.

Crim. App. 2010); see also Cain v. State, No. 10-11-00045-CR, 2011 Tex. App. LEXIS 8159,

at *11 (Tex. App.—Waco Oct. 12, 2011, no pet. h.) (mem. op., not designated for

publication) (modifying the judgment to delete the finding ordering appellant to pay

his court-appointed attorney’s and investigator’s fees). We therefore sustain Tynes’s

third issue and modify the judgment to delete the finding that orders Tynes to pay his

court-appointed attorney’s and investigator’s fees.

                                    V.     CONCLUSION

        We modify the trial court’s judgment to delete the finding that orders Tynes to

pay his court-appointed attorney’s and investigator’s fees. We affirm the judgment as

modified.



                                                AL SCOGGINS
                                                Justice




Tynes v. State                                                                   Page 15
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed December 14, 2011
Do not publish
[CR25]




Tynes v. State                                  Page 16
