Affirmed as Modified and Opinion Filed September 11, 2013




                                         S In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                      No. 05-12-00183-CR

                               CATARINO REYES, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 283rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F10-71881-T

                               MEMORANDUM OPINION
                         Before Justices Bridges, FitzGerald, and Myers
                                  Opinion by Justice Bridges

       Catarino Reyes appeals from one of two convictions for aggravated sexual assault with a

deadly weapon. Appellant was convicted by a jury, and the trial court sentenced him to fifty

years’ imprisonment for each count. In three issues, appellant contends the trial court abused its

discretion by admitting evidence he argues was never properly linked to him, the trial court erred

by assessing attorney’s fees against him in the judgment, and the judgment should be reformed to

properly reflect the offense for which he was convicted. As reformed, we affirm the trial court’s

judgment.

       On December 11, 2005, appellant sexually assaulted the complainant at gunpoint. The

complainant was taken to a hospital where a rape exam was performed and DNA evidence was

collected. On March 7, 2006, appellant was arrested after the police caught him driving a stolen

vehicle. The police detective handling the investigation of the complainant’s sexual assault
recovered from the owner of the stolen vehicle some of the complainant’s property that was

taken during the assault, including the complainant’s cell phone, a TX ID card, Blockbuster

cards, and a pawn ticket. The police detective entered the DNA evidence from the complainant’s

rape kit into the data base for unsolved crimes. In March 2010, another police detective was

assigned to follow up on the complainant’s assault because the police received a DNA match that

led to appellant. A DNA analysis compared appellant’s DNA to the DNA found in the

complainant’s rape kit.     The test showed the probability of selecting a random unrelated

individual who would have the same DNA profile as appellant was one in 11.8 trillion for

Caucasians, one in 85.8 trillion for African Americans, and one in 99.4 trillion for Hispanics.

       Appellant was charged by indictment with two counts of aggravated sexual assault with a

deadly weapon. A pre-trial hearing was held on the admissibility of the gun appellant had in his

waistband when he was arrested in the stolen vehicle. At the hearing, the complainant testified

that during the assault, appellant took the complainant’s bag which contained, among other

items, a pawn ticket, and the complainant’s wallet and cell phone, identified at trial as State’s

Exhibits 2, 3, and 4, respectively. At the end of the hearing, appellant objected to the admission

of State’s Exhibits 2, 3, and 4 because “there’s been no showing connecting it to this defendant

other than it being in the car . . . , there was also another person in the car [when appellant was

arrested] . . . , and it’s prejudicial to [appellant], particularly due to the fact that he hadn’t been

identified as the suspect in this case at that point.” The trial court overruled appellant’s objection

“assuming that [the owner of the stolen vehicle] is able to testify that he found [the items in

question] and turned them over to this detective.” When the State moved to admit State’s

Exhibits 2, 3, and 4 at trial, appellant renewed his previous objection to the evidence, but the trial

court overruled his objection.




                                                 –2–
       A jury convicted appellant on both counts of aggravated sexual assault. The trial court

assessed appellant’s punishment at fifty years’ imprisonment for each count. The judgment

ordered appellant to pay all court costs, including $250 in attorney’s fees.

       In his first issue, appellant asserts the trial court abused its discretion by admitting State’s

Exhibits 2, 3, and 4, arguing the exhibits were not “properly linked to Appellant.” Appellant

admits the exhibits can be linked to the sexual assault of the complainant, but he alleges “[t]he

only evidence before the jury showed that these items were recovered from the owner of the

stolen vehicle at his home.” He contends there is “no testimony [or other evidence] that these

items were found in the vehicle.” According to appellant, “complainant . . . failed to identify

Appellant . . . [and] Appellant’s physical description did not match that of [complainant’s]

attacker.” He argues “[g]iven the lack of a connection between Appellant and the evidence, the

risk of undue prejudice and the danger of misleading the jury was high.”

       The State responds the exhibits in question were reasonably connected to appellant and

more probative than prejudicial. According to the State, the overruling of appellant’s objection

was well within the zone of reasonable disagreement and should not be disturbed. Additionally,

the State contends other evidence admitted at trial far outweighed State’s Exhibits 2, 3, and 4

such that no harm resulted from any error in overruling appellant’s objection to the exhibits in

question.

       “Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, or needless presentation of cumulative evidence.” TEX. R.

EVID. 403. “We have long held that a trial court is entitled to broad discretion in ruling on a Rule

403 objection.” State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005) (citing Manning

v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003)). “Rule 403’s language implies that a

                                                –3–
determination under this rule is inherently discretionary with the trial court.” Id. (citing

Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990)). “The inclusion of the

word ‘may’ displays the drafter’s intent to vest the trial court with substantial discretion.” Id.

(citing Manning, 114 S.W.3d at 926). Furthermore, “the trial court is in a superior position to

evaluate the impact of the evidence.” Id. (citing Montgomery, 810 S.W.2d at 378-79). “Unlike

the trial court, an appellate court “‘cannot weigh on appeal . . . the intonation and demeanor of

the witnesses preceding the testimony in issue . . . nor can we determine the emotional reaction

of the jury to other pieces of evidence . . . .” Id. (citing Montgomery, 810 S.W.2d at 379).

       “The test for whether the trial court abused its discretion is whether the action was

arbitrary or unreasonable.” Id. (citing Manning, 114 S.W.3d at 926). “An appellate court should

not reverse a trial judge whose ruling was within the zone of reasonable disagreement.” Id. at

440 (citing Manning, 114 S.W.3d at 926; Montgomery, 810 S.W.2d at 380). “A proper Rule 403

analysis includes, but is not limited to, four factors: (1) the probative value of the evidence; (2)

the potential to impress the jury in some irrational yet indelible way; (3) the time needed to

develop the evidence; and (4) the proponent’s need for the evidence.” Id. (citing Erazo v. State,

144 S.W.3d 487, 489 (Tex. Crim. App. 2004); Montgomery, 810 S.W.2d at 389-90).

       The record shows the owner of the stolen vehicle testified he found property in his

vehicle after it was recovered. He stated the property included clothes that were “real dirty and

nasty-looking so [he] didn’t want to pick it up or go through it.” Although the owner of the

stolen vehicle did not remember a police detective talking with or collecting any items from him,

Detective Dovie Pepsis testified he went to the home of the owner of the stolen vehicle and

collected State’s Exhibits 2, 3, and 4. Therefore, there was evidence that items stolen from the

complainant during the assault were collected from the owner of the stolen vehicle that appellant




                                                –4–
was found driving. Thus, the evidence had probative value identifying appellant as a suspect in

the complainant’s sexual assault.

       Appellant complains the prosecutor “relied heavily on this evidence to corroborate the

complainant’s testimony about the offense and connect Appellant to the assault . . . [and]

argu[ed] the significance of the evidence four different times to the jury during closing

arguments.” However, the record shows the prosecutor admitted to the jury that “[i]f you had just

that to go on I’d say man, it’s going to be difficult.” The prosecutor went on to state there was

DNA evidence from the sexual assault that “match[ed]” that of appellant. We conclude the trial

court’s decision to overrule appellant’s objection to Exhibits 2, 3, and 4 is within the zone of

reasonable disagreement. See Mechler, 153 S.W.3d at 440.

       Even assuming the trial court erred by overruling appellant’s objection to State’s Exhibits

2, 3, and 4, any error was harmless because the record contains other evidence to sufficiently

“link” appellant to the assault. The State admitted evidence of a DNA analysis that compared the

DNA evidence collected from appellant to the DNA evidence retrieved from the complainant’s

rape kit and showed the probability of selecting a random unrelated individual who would have

the same DNA profile as appellant was one in 11.8 trillion for Caucasians, one in 85.8 trillion for

African Americans, and one in 99.4 trillion for Hispanics.          Additionally, the complainant

testified the gun taken from appellant when he was caught driving the stolen vehicle looked like

the same gun appellant used during the assault. Accordingly, we conclude there was sufficient

evidence to link appellant to the assault such that any error in admitting State’s Exhibits 2, 3, and

4 was harmless. We overrule appellant’s first issue.

       In his second issue, appellant complains the trial court erred by assessing attorney’s fees

against him in the judgment because “[t]he evidence is clearly insufficient to support the trial

court’s assessment of attorney’s fees.” He argues that, because he was found to be indigent at

                                                –5–
trial and on appeal, he “is presumed to remain indigent absent evidence of a material change in

Appellant’s financial circumstances” and that “[n]o such evidence was presented to the trial

court . . . [or] appear[s] in the record.”

        “Code of Criminal Procedure Article 26.05(g) allows the trial court to order a defendant

to re-pay costs of court-appointed legal counsel that the court finds the defendant is able to pay.”

Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (citing TEX. CODE CRIM. PROC.

Ann. art. 26.05(g) (West 2009 & Supp. 2012)). “[U]nder Article 26.05(g), ‘the defendant’s

financial resources and ability to pay are explicit critical elements in the trial court’s

determination of the propriety of ordering reimbursement of costs and fees.’” Id. (quoting Mayer

v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). “However, a ‘defendant who is

determined by the court to be indigent is presumed to remain indigent for the remainder of the

proceedings in the case unless a material change in the defendant’s financial circumstances

occurs.’” Id. (quoting TEX. CODE CRIM. PROC. Ann. art. 26.04(p) (West 2009 & Supp. 2012)).

        “Code of Criminal Procedure Article 26.05(g) requires a present determination of

financial resources and does not allow speculation about possible future resources.” Cates, 402

S.W.3d at 252.

        The record in this case reflects that appellant was indigent and represented by court-

appointed counsel at trial. Thus, absent evidence of a material change in appellant’s financial

circumstances, we presume he remained indigent for the rest of the proceedings in the case. See

TEX. CODE CRIM. PROC. Ann. art. 26.04(p); Cates, 402 S.W.3d at 251. The State does not point

to any evidence that would rebut this presumption or show that a material change in appellant’s

financial circumstances occurred. Therefore, there was no factual basis in the record to support a

determination that appellant could pay the fees. See id. Accordingly, we modify the portion of

the trial court’s judgment imposing $756 in court costs to reduce the total court costs to the sum

                                                –6–
of $506 by deleting the attorney’s fees in the amount of $250 included therein. See Cates, 402

S.W.3d at 252.

       In his third issue, appellant contends the judgment for his second conviction should be

reformed to properly reflect the offense for which he was convicted. The State agrees with

appellant that the judgment should be reformed “to reflect the charge of which Appellant was

convicted.” The judgment states the offense is “aggravated sex mouth deadly weapon.”

However, the record reflects the charge of which appellant was convicted was aggravated sexual

assault with a deadly weapon. Therefore, we order the trial court’s judgment to be modified to

read “aggravated sexual assault with a deadly weapon.” Estrada v. State, 334 S.W.3d 57, 63

(Tex. App.—Dallas 2009) (“This Court has the power to modify an incorrect judgment to make

the record speak the truth when we have the necessary information to do so.”) (citing TEX. R.

APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State,

813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d)).

       As reformed, we affirm the judgment of the trial court.




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47

120183F.U05




                                              –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CATARINO REYES, Appellant                           On Appeal from the 283rd Judicial District
                                                    Court, Dallas County, Texas
No. 05-12-00183-CR         V.                       Trial Court Cause No. F10-71881-T.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices FitzGerald and Myers participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        The word "mouth" is deleted from the description of the charge of which
        appellant was convicted so that the charge reads "aggravated assault with a deadly
        weapon"
As REFORMED, the judgment is AFFIRMED.


Judgment entered September 11, 2013




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




                                              –8–
