                               NOS. 12-12-00273-CR
                                    12-12-00275-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

CHRISTOPHER MORRIS BOWMAN,                      §           APPEALS FROM THE 7TH
APPELLANT

V.                                              §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §           SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Christopher Morris Bowman appeals his convictions for felony driving while intoxicated
and possession of a controlled substance for which he was sentenced to imprisonment for eighteen
years and eight years respectively. Appellant raises two issues on appeal of his conviction for
felony driving while intoxicated and a single issue on appeal of his conviction for possession of a
controlled substance. We modify and affirm as modified in each cause.


                                         BACKGROUND
       Early in the morning of April 10, 2011, two vehicles were driving near the American Inn, a
hotel in North Tyler. Appellant was driving a black BMW sedan, and Jonathan Lester was
driving a pickup truck. Appellant was driving very closely behind Lester’s vehicle. As the two
vehicles approached the hotel, Appellant passed Lester and entered the hotel parking lot.
Appellant drove his car up a steeply inclined driveway and stopped his vehicle there. Lester
drove his truck into the driveway behind Appellant.        Suddenly, Appellant’s vehicle rolled
backward into Lester’s truck.1 Appellant drove his vehicle forward and, again, it abruptly rolled
backward into Lester’s truck as Lester attempted to aggressively maneuver his vehicle in reverse
to avoid a second collision. Thereafter, Appellant drove his vehicle into the hotel parking lot.
Following an investigation by Tyler police officers, Appellant was arrested for driving while
intoxicated.
            Appellant was charged by indictment with felony2 driving while intoxicated and pleaded
―not guilty.‖ The indictment also included a ―deadly weapon‖ allegation. Following a jury trial,
Appellant was found ―guilty‖ as charged. The matter proceeded to a trial on punishment. At the
trial on punishment, Appellant also pleaded ―guilty‖ in a separate cause to possession of a
controlled substance. Ultimately, the trial court found that Appellant used or exhibited a deadly
weapon during the commission of the offense and sentenced Appellant to imprisonment for
eighteen years for felony driving while intoxicated. The court also sentenced Appellant to
imprisonment for eight years for possession of a controlled substance. This appeal followed.3


                            EVIDENTIARY SUFFICIENCY OF DEADLY WEAPON FINDING
            In his first issue in cause number 12-12-00273-CR, Appellant argues that the evidence is
legally insufficient to support the trial court’s finding that he used his motor vehicle as a deadly
weapon during the commission of the offense of driving while intoxicated.
            The Jackson v. Virginia4 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo v. State, 6
            1
                Lester was driving to the hotel to pick up his brother, who was walking toward the vehicles at the time of the
accident.
            2
                It was subsequently determined that Appellant had two prior convictions for driving while intoxicated.
            3
           Cause number 12-12-00273-CR is Appellant’s appeal from his conviction for felony driving while
intoxicated. Cause number 12-12-00275-CR is Appellant’s appeal from his conviction for possession of a controlled
substance.
            4
                443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).
                                                                2
S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal
sufficiency challenge is whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see
also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined
in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789;
Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of
an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211,
2217–18, 72 L. Ed. 2d 652 (1982).
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include 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
is tried.‖ Id.
       The Texas Penal Code defines a ―deadly weapon‖ as ―anything that in the manner of its use
or intended use is capable of causing death or serious bodily injury.‖ TEX. PENAL CODE ANN.
§ 1.07(a)(17)(B) (West Supp. 2012). ―To determine whether the evidence supports a deadly
weapon finding in cases involving motor vehicles, we conduct a two-part analysis.‖ Foley v.
State, 327 S.W.3d 907, 916 (Tex. App.–Corpus Christi 2010, pet. ref’d); Hilburn v. State, 312
S.W.3d 169, 177 (Tex. App.–Fort Worth 2010, no pet.) (citing Sierra v. State, 280 S.W.3d 250,
255 (Tex. Crim. App. 2009)). We first ―evaluate the manner in which the defendant used the
motor vehicle during the felony.‖ Sierra, 280 S.W.3d at 255. We then ―consider whether,
during the felony, the motor vehicle was capable of causing death or serious bodily injury.‖ Id.
       Here, Appellant challenges only the sufficiency of the evidence supporting whether, during
the felony, his motor vehicle was capable of causing death or serious bodily injury. To sustain
this finding, several Texas courts have held that when an accident has occurred, there must be
evidence that others were actually endangered. See Cates v. State, 102 S.W.3d 735, 738 (Tex.
Crim. App. 2003); Foley, 327 S.W.3d at 916; Owen v. State, No. 03-08-00403-CR, 2010 WL
668892, at *3–4 (Tex. App.–Austin Feb. 26, 2010, no pet.) (mem. op., not designated for
publication) (evidence legally sufficient to support finding that intoxicated driver was using
                                                  3
vehicle in manner capable of causing death or serious bodily injury where two witnesses saw
driver collide with vehicle parked in driveway, vehicle came within ten to fifteen feet of witnesses
traveling at twenty-five to thirty miles per hour, and police officer testified that car driven at that
speed and in uncontrolled manner described was capable of causing serious bodily injury). A
hypothetical potential for danger is not sufficient. Foley, 327 S.W.3d at 916; Cates, 102 S.W.3d
at 738. We must examine the record for evidence that there was someone present who was placed
in danger of serious bodily injury or death. See Drichas v. State, 219 S.W.3d 471, 475–76 (Tex.
App.–Texarkana 2007, no pet.); see also Owen, 2010 WL 668892, at *3.
       In the instant case, there is ample evidence that there were others in the immediate vicinity
of Appellant’s vehicle at the time and place where he collided with Lester’s vehicle. Lester’s
vehicle was stopped closely behind Appellant’s vehicle and was struck twice by Appellant’s
vehicle despite Lester’s attempts to aggressively reverse his car to avoid a second impact.
Moreover, Lester’s brother was walking toward the vehicles when the collisions occurred.
Further still, Tyler police officer Timothy Hutson testified at Appellant’s trial on punishment that a
vehicle that is traveling backward at a slow rate of speed and strikes another vehicle several times
is being operated in a manner that is capable of causing death or serious bodily injury. Based on
our review of the record, we conclude that the evidence supports that both Lester and his brother
were placed in danger of serious bodily injury as a result of Appellant’s reckless driving.
Therefore, we hold that the evidence is legally sufficient to support the trial court’s ―deadly
weapon‖ finding. Appellant’s first issue in cause number 12-12-00273-CR is overruled.


                          EVIDENTIARY SUFFICIENCY OF COURT COSTS
       In his second issue in cause number 12-12-00273-CR and his sole issue in cause number
12-12-00275-CR, Appellant contends that the trial court erred by imposing court costs not
supported by a bill of costs and by ordering that the same be withdrawn from his inmate trust
account. Since the filing of Appellant’s brief, the record in each cause has been supplemented
with a bill of costs. See Johnson v. State, No. 12-12-00289-CR, 2013 WL 3054994, at *2 (Tex.
App.—Tyler June 19, 2013, no pet. h.) (permitting supplementation of record with bill of costs).
Accordingly, we review Appellant’s issues as challenges to the sufficiency of the evidence


                                                  4
supporting court costs in each cause.5
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, 309 S.W.3d at 557 (Tex. Crim. App. 2010); Cardenas v. State, 2013 WL 1164365, at *6.
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.).
Evidence Supporting Assessment of Costs
         In cause number 12-12-00273-CR, the judgment of conviction reflects that the trial court
assessed $798.00 in court costs. The judgment includes a document identified as ―Attachment A
Order to Withdraw Funds,‖ which states that Appellant has incurred ―[c]ourt costs, fees and/or
fines and/or restitution‖ in the amount of $798.00. The certified bill of costs itemizes the court
costs imposed, which also total $798.00. We have reviewed each of the fees listed in the bill of

         5
            In response to Appellant’s second issue in cause number 12-12-00275-CR, the State argues that Appellant
was required to preserve error in order to challenge the assessment of costs. We disagree. See Cardenas v. State,
No. 01-11-01123-CR, 2013 WL 1164365, at *5 (Tex. App.–Houston [1st Dist.] Mar. 21, 2013, no pet.) (not yet
released for publication) (―contemporary objection in the trial court is not required‖ to challenge assessment of costs)
(citing Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010) (―A claim regarding sufficiency of the evidence
need not be preserved for review at the trial level and is not waived by the failure to do so.‖)). The State also argues
that Appellant should not be allowed to benefit from an incomplete record when he fails to request that a bill of costs
be included in the record on appeal. We need not address this argument because the record has been supplemented
with a bill of costs. See TEX. R. APP. P. 47.1.
                                                           5
costs.       Except for the items listed as ―attorney fees,‖ ―DNA Sample Cost‖ and ―graffiti
eradication fund,‖ all other costs and fees are authorized by statute.
         In cause number 12-12-00275-CR, the judgment of conviction reflects that the trial court
assessed $378.00 in court costs. The judgment includes a document identified as ―Attachment A
Order to Withdraw Funds,‖ which states that Appellant has incurred ―[c]ourt costs, fees and/or
fines and/or restitution‖ in the amount of $378.00. The certified bill of costs itemizes the court
costs imposed, which total $378.00. We have reviewed each of the fees listed in the bill of costs.
Except for the item listed as ―DNA Sample Cost,‖ all other costs and fees are authorized by statute.
         The State concedes that the assessment of attorney’s fees in cause number
12-12-00273-CR is improper. The trial court twice determined that Appellant was indigent, and
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. As a result, 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.
         The item listed as ―DNA Sample Cost,‖ may be imposed, among other instances, where an
individual convicted of a felony is placed on community supervision and is required to submit a
DNA sample. See TEX. CODE CRIM. PROC. ANN. arts. 42.12, § 11(j), 102.020(a)(3) (West Supp.
2012). Appellant was assessed the ―DNA Sample Cost‖ in each case. However, Appellant was
not placed on community supervision in either of these cases. Accordingly, the evidence is
insufficient to support the imposition of the $34.00 ―DNA Sample Cost‖ assessed in each bill of
costs.
         The ―graffiti eradication fund‖ fee should not be imposed unless an individual is convicted
of an offense under Section 28.08 of the penal code.6 Appellant was not convicted under Section
28.08 in cause number 12-12-00273-CR. Accordingly, the evidence is insufficient to support the
imposition of the ―graffiti eradication fund‖ cost.
         We sustain in part Appellant’s second issue in cause number 12-12-00273-CR. We

         6
           A person commits a criminal offense under Section 28.08 if, ―without the effective consent of the owner,
the person intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the
tangible property of the owner with: (1) paint; (2) an indelible marker; or (3) an etching or engraving device.‖ TEX.
PENAL CODE ANN. § 28.08 (West 2011).
                                                         6
further sustain in part Appellant's sole issue in cause number 12-12-00275-CR.


                                                   CONCLUSION
         We have overruled Appellant’s first issue in cause number 12-12-00273-CR, but have
sustained Appellant’s second issue in that cause in part. Moreover, we have sustained in part
Appellant’s sole issue in cause number 12-12-00275-CR.
         In cause number 12-12-00273-CR, we modify the trial court’s judgment to reflect that the
amount of court costs is $459.00. See TEX. R. APP. P. 43.2(b). We also modify Attachment A to
state that the total amount of ―court costs, fees and/or fines and/or restitution‖ is $459.00. See,
e.g., Reyes v. State, 324 S.W.3d 865, 868 (Tex. App.—Amarillo 2010, no pet.). We affirm the
trial court’s judgment as modified in cause number 12-12-00273-CR. See TEX. R. APP. P.
43.2(b).
         In cause number 12-12-00275-CR, we modify the trial court’s judgment to reflect that the
amount of court costs is $344.00. See TEX. R. APP. P. 43.2(b). We also modify Attachment A to
state that the total amount of ―court costs, fees and/or fines and/or restitution‖ is $344.00. See,
e.g., Reyes, 324 S.W.3d at 868. We affirm the trial court’s judgment as modified in cause
number 12-12-00275-CR. See TEX. R. APP. P. 43.2(b).


                                                                SAM GRIFFITH
                                                                   Justice

Opinion delivered July 24, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)


                                                           7
                               COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT
                                            JULY 24, 2013


                                      NO. 12-12-00273-CR

                            CHRISTOPHER MORRIS BOWMAN,
                                       Appellant
                                          V.
                                 THE STATE OF TEXAS,
                                       Appellee

_____________________________________________________________________________
                               Appeal from the 7th Judicial District Court
                           of Smith County, Texas. (Tr.Ct.No. 007-1032-11)
 _____________________________________________________________________________
                        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 judgment of the
trial court 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 $459.00. We also
modify Attachment A to state that the total amount of ―court costs, fees and/or fines and/or
restitution‖ is $459.00; 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.




                                                     8
                               COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT
                                            JULY 24, 2013


                                      NO. 12-12-00275-CR

                            CHRISTOPHER MORRIS BOWMAN,
                                       Appellant
                                          V.
                                 THE STATE OF TEXAS,
                                       Appellee

_____________________________________________________________________________
                               Appeal from the 7th Judicial District Court
                           of Smith County, Texas. (Tr.Ct.No. 007-1507-11)
 _____________________________________________________________________________
                        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 judgment of the
trial court 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 $344.00. We also
modify Attachment A to state that the total amount of ―court costs, fees and/or fines and/or
restitution‖ is $344.00; 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.




                                                     9
