                                  NO. 07-10-00126-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                    AUGUST 19, 2010


                                    ARELL COLE, JR.,

                                                                   Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                            ___________________________

           FROM THE COUNTY COURT AT LAW OF McLENNAN COUNTY;

           NO. 20093647CR1; HONORABLE MIKE FREEMAN, PRESIDING


                                 Memorandum Opinion


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

       Arell Cole, Jr. appeals his conviction for driving while intoxicated and raises two

issues. He first claims that 1) the trial court erred in ordering him to pay court-appointed

attorney’s fees when the record contained no evidence that he was capable of doing so,

and then posits that 2) it abused its discretion in admitting hearsay testimony from two

paramedics regarding conversations they overheard between him and his wife. We

modify the judgment and affirm it as modified.
       Background

       Appellant and his wife were involved in a one-car accident on July 11, 2009, at

around 2:45 a.m.       Emergency personnel who arrived at the scene believed that

appellant was the driver of the vehicle based on statements he made, the location in

which they found him, the position of the driver’s seat, and other circumstantial

evidence. Two paramedics also overheard separate conversations between appellant

and his wife wherein they discussed who should take responsibility for being the driver.

Appellant was found to have a .20 blood alcohol concentration at the time of the

accident, and the only contested issue at trial was whether he had been driving the

vehicle.

       Issue 1 – Payment of Court-Appointed Attorney’s Fees

       In the judgment, the trial court ordered appellant to pay “all costs in this cause.”

Also appearing on the same document is a stamped notation after the trial judge’s

signature stating: “It is ORDERED that all court appointed attorney fees in this case

shall be taxed as costs of court pursuant to Art. 26.05(f), Tx. Code of Criminal

Procedure.”1 When this notation was placed on the judgment and by whom is unknown

since neither a date nor initials appear next to it. Nevertheless, appellant contends that

the evidence is legally insufficient to support the directive. We sustain the issue.

       If a court determines that a defendant has the financial resources to offset, in

whole or part, the costs of legal services provided him, the trial court shall order him to

pay for those services to the extent that he can. TEX. CODE CRIM. PROC. ANN. art.

26.05(g) (Vernon Supp. 2009); see Sauceda v. State, 309 S.W.3d 767, 770 (Tex. App.

       1
       The record does not indicate what portion of the court costs were represented by attorney’s fees.

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–Amarillo 2010, no pet.) (addressing the matter). Implicit therein is the need for 1) the

trial court to find that appellant is capable of paying for some or all of that expense and

2) evidence supporting that determination.

       Here, the trial court did not specify a particular amount of fees that should be

repaid. Nor did it find that appellant had sufficient financial resources to pay any of the

expenses at issue. Instead, it twice (at trial and on appeal) appointed legal counsel to

represent appellant. It is elemental that before such appointments could have been

made, appellant had to have been deemed indigent, that is, without sufficient economic

or financial resources to pay for his own attorney. Trammell v. State, 287 S.W.3d 336,

343 (Tex. App.–Fort Worth 2009, no pet.) (explaining when a defendant is entitled to

appointed counsel). More importantly, appellant being found indigent for purposes of

gaining appointed counsel hardly establishes that he had sufficient financial resources

to offset the expenses incurred in providing him an attorney. The contrary seems rather

logical, as the State seemed to recognize in its brief. So too is it true that once a

defendant is found indigent, he is presumed to remain so for the remainder of the

proceedings, unless there is some proof that his financial resources materially changed.

Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Sauceda v. State, 309

S.W.3d at 770. And, we have no such showing before us.

       As for the State’s request to have the cause abated and remanded, it is rather

settled that when the evidence is held to be legally insufficient to support a finding, the

cause cannot be simply abated and remanded for additional factual development.

Mayer v. State, 309 S.W.3d at 557. Thus, the State does not get another opportunity to



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bite at the attorney’s fee apple, especially when we are cited to nothing of record

suggesting that it was precluded from taking a first bite.

       Issue 2 – Hearsay Testimony

       Next, appellant complains that the trial court erred in admitting the testimony of

two paramedics who testified about overhearing appellant and his wife discuss who

should admit to driving the vehicle at the time of the accident. Appellant objected to the

testimony on the grounds of hearsay. We overrule the issue.

       Hearsay is a statement, other than one made by the declarant while testifying at

trial, offered to prove the truth of the matter asserted.    TEX. R. EVID. 801(d).     The

statements at bar consisted of both paramedics testifying that they overheard appellant

state that he was driving the vehicle after his wife suggested that all should be told that

she was driving. While appellant’s utterance could be considered hearsay, it can also

be reasonably interpreted as a statement against interest. As such, it can be admitted

as an exception to the hearsay rule. See id. 803(24) (stating that an exception to the

hearsay rule is one which at the time of its making was so far contrary to the declarant’s

interest or so far tended to subject him to criminal liability that a reasonable person

would not have made the statement unless believing it to be true).

       As for reiteration of the wife’s portion of the conversation, it could be reasonably

interpreted as providing the context for appellant’s admission. As such, it was not being

offered to prove the substance of what was being asserted, i.e. that the wife drove the

car. See Stallings v. State, 476 S.W.2d 679, 681 (Tex. Crim. App. 1972) (stating that

testimony from the complaining witness as to a statement made by the defendant’s wife

immediately prior to the crime to the effect that the defendant was wanting to cut her

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throat was not hearsay because it was made in the defendant’s presence and not

offered to prove that appellant had actually assaulted his wife).     Therefore, we cannot

say the trial court abused its discretion in admitting the testimony at issue.

       Accordingly, we modify the judgment to delete that portion requiring appellant to

pay attorney’s fees and affirm the remainder.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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