                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00206-CR


RAUL VILLEGAS GARZA                                               APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12706

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

      Appellant Raul Villegas Garza appeals his conviction of and sentence for

tampering with or fabricating evidence.    See Tex. Penal Code § 37.09(a)(2)

(West Supp. 2014). We modify the judgment and affirm it as modified.




      1
      See Tex. R. App. P. 47.4.
                                Background Facts

      In 2004, Appellant was convicted on four counts of indecency with a child

and sentenced to twenty years’ confinement for each count, to run concurrently.

During his incarceration, Appellant filed six applications for postconviction

habeas relief. Appellant’s sixth application was filed on February 12, 2013.

      When the Hood County District Attorney, Robert Christian, received a copy

of the sixth application, he noted that the application contained two affidavits that

had not been included in Appellant’s previous applications.           One, entitled

“Affidavit to Recant My False Testimony,” was purportedly written by Appellant’s

ex-wife, Priscilla Sides, formerly known as Priscilla Kindle. The affidavit used the

spelling “Priscilla Kendal” and was signed by “Priscilla Kendall.” The affidavit

stated that Sides had lied on the witness stand during Appellant’s trial. The other

affidavit was purportedly written by Dr. H. Pat Hezmall and stated that Appellant

“has no capacity for sexual arousal.”

      On March 4, 2013, Robert Young, an investigator for the district attorney of

Hood County, interviewed Appellant in prison. Young recorded the interview with

both a video camera and an audiotape recorder. He gave Appellant a Miranda

warning and asked if he would be willing to answer questions. Appellant agreed

to talk. While Young was interviewing Appellant, prison guards removed all of

Appellant’s files and documents from his cell.           The guards brought the

documents to the interview room, and Young got Appellant’s permission to go

through them and discuss them.


                                         2
      Young interviewed Appellant for about an hour and a half, at which time

Appellant asked Young to turn off the video recorder. Unaware that he was still

being recorded by audiotape, Appellant confessed to making the false affidavits

with the help of some other inmates.

      Appellant took a break for dinner, and when he returned, Young asked him

to complete a written statement regarding his confession.          He also asked

Appellant to sign a consent form to allow him to take the documents from the

prison. At the top of the statement form, Appellant initialed that he understood

his rights. The consent form also had his rights listed at the top of the page.

Young took all of Appellant’s documents except for a copy of a court reporter’s

record.

      Appellant was charged with aggravated perjury and tampering with or

fabricating evidence. See id. Before trial, Appellant filed a motion to suppress

the tangible evidence removed from his prison cell and all statements he made to

law enforcement officers. After a hearing, the trial court denied the motion.

      Also prior to trial, Appellant filed a motion to disqualify or recuse Judge

Ralph Walton, Jr. from presiding over the case. Judge Walton had represented

Appellant against charges of sexual abuse of a child that were unrelated to his

2004 conviction, and Appellant claimed that he intended to call Judge Walton as

a witness. Judge Jeff Walker, then presiding for the 8th Administrative Judicial

Region, denied this motion after a hearing.




                                         3
      At trial, Priscilla testified that on the date the affidavit was signed, her last

name was Sides, not Kindle, that she had never spelled Kindle as “Kendal” or

“Kendall,” and that she did not sign the affidavit purporting to be from her. The

notaries whose stamps were on the questioned affidavits both testified that they

did not notarize the affidavits.

      A man named John Pizer testified that he had been assisting Appellant

with his applications. He testified that he had sent Hezmall the affidavit for him to

sign, but that Hezmall had never responded. Pizer stated that he eventually

received the signed copy of the Hezmall affidavit and Kendall affidavit in

envelopes with no return address. He did not know who mailed them to him.

Pizer then filed Appellant’s writ for him, using the affidavits as exhibits and

signing Appellant’s name.

      A jury found Appellant not guilty of aggravated perjury, but guilty of

tampering with or fabricating evidence, and assessed a punishment of twenty

years’ confinement. The trial court sentenced Appellant accordingly. Appellant

then filed this appeal.

                                    Discussion

1. Motion to suppress

      In his first point, Appellant argues that the trial court erred by denying his

motion to suppress the evidence removed from his prison cell and the statements

he made in his interview with Young. At the hearing on the motion, and again at

trial, Appellant argued that he did not consent to the search of his prison cell and


                                          4
that he was coerced into giving a false confession so that he would be allowed to

keep a copy of his trial transcript.

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.         Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d

at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson

v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      The State argues that Appellant did not have standing to challenge the

search of his prison cell. A person has standing to contend that a search or

seizure was unreasonable if (1) he has a subjective expectation of privacy in the

place or object searched and (2) society is prepared to recognize that

expectation as “reasonable” or “legitimate.” State v. Granville, 423 S.W.3d 399,

405 (Tex. Crim. App. 2014) (citing Minnesota v. Olson, 495 U.S. 91, 95–97,

110 S. Ct. 1684, 1687–88 (1990); Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim.

App. 2004)).     The United States Supreme Court has held, “[S]ociety is not

prepared to recognize as legitimate any subjective expectation of privacy that a

prisoner might have in his prison cell and that, accordingly, the Fourth

Amendment proscription against unreasonable searches does not apply within


                                            5
the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct.

3194, 3200 (1984).      Although Appellant relies heavily on Granville for his

standing argument, nothing in that opinion undermines the clear statement in

Hudson. See Granville, 423 S.W.3d at 414 & n.56 (distinguishing Hudson). The

cases Appellant cites from other jurisdictions are also irrelevant to our analysis.

See United States v. Cohen, 796 F.2d 20, 24 (2d Cir. 1986) (holding that pre-trial

detainee had an expectation of privacy within his cell sufficient to challenge an

investigatory search ordered by a prosecutor); Lowe v. State, 203 Ga. App. 277,

278–79, 416 S.E.2d 750, 752 (1992) (same). Both Cohen and Lowe involve pre-

trial detainees, not convicted prisoners as is the case here. See Willis v. Artuz,

301 F.3d 65, 69 (2d Cir. 2002) (distinguishing Cohen on ground that appellant

was a convicted prisoner); Lutz v. Collins, No. 04-08-00496-CV, 2009 WL

330958, at *4 (Tex. App.—San Antonio Feb. 11, 2009, pet. denied) (mem. op.)

(same). We overrule Appellant’s first point as to the search of his prison cell and

seizure of the tangible evidence.

      As to Appellant’s argument that his confession was the result of coercion

or duress, we must give deference to the trial court’s evaluation of the facts.

See Amador, 221 S.W.3d at 673. Appellant testified that he confessed because

he had been worn out from the interview. He said,

      I’d been there, and I tried to tell him the truth, several times I told him
      that I didn’t do it, that that was not my signature, and he wouldn’t
      believe me, and he just finally wore me down to where I was going to
      tell him what he wanted to hear.



                                          6
      Appellant claimed that he gave his oral confession so that he could keep

his trial transcript.   Yet, the entire conversation was audiotaped and having

reviewed that tape, we find no promise or coercion by Young prior to Appellant’s

confession. Appellant later testified that Young promised that Appellant could

keep his trial transcript if he provided a written statement. Appellant claimed the

promise was made after Young had turned off the recording devices. Young

denied that he promised Appellant anything in exchange for his confession. He

testified that he left the transcript at Appellant’s request and because it was not

relevant to his investigation of the doctored applications.

      The trial court issued findings that “beyond a reasonable doubt, without

regard to the truth or falsity of said audio taped and videotaped oral statement,

that the same was freely and voluntarily made and is, as a matter of law and fact,

admissible as evidence before the jury in this case.” The trial judge believed that

Appellant had not been coerced and he was free to make that determination.

See Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994) (“The trial judge

is sole judge of credibility of witnesses in a pretrial hearing and, absent a

showing of abuse of discretion, a trial court’s finding on the voluntariness of a

confession will not be disturbed.”). Nothing in these facts shows that the trial

court abused its discretion in denying the motion to suppress the confession. We

overrule the remainder of Appellant’s first point.




                                          7
2. Sufficiency of the evidence

      In his second point, Appellant argues that the evidence is legally

insufficient to support his conviction. In our due-process review of the sufficiency

of the evidence to support a conviction, we view all of the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v.

State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This standard gives full play

to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d

at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence.   See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs,

434 S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences


                                         8
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326,

99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

      A person commits the offense of tampering with or fabricating physical

evidence if, knowing that an investigation or official proceeding is pending or in

progress, he makes, presents, or uses any record, document, or thing with

knowledge of its falsity and with intent to affect the course or outcome of the

investigation or official proceeding.     Tex. Penal Code Ann. § 37.09(a)(2).

Appellant notes that the jury charge defined the offense as “intentionally or

knowingly mak[ing], present[ing,] and us[ing] documents . . . with knowledge of

their falsity and with the intent to affect the course or outcome of the official

proceeding.” [Emphasis added.] He argues that there is no evidence that he

made, presented, and used false documents.            However, we measure the

sufficiency of the evidence by the elements of the offense as defined by the

hypothetically correct jury charge for the case, not the charge actually given.

Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v. State, 389 S.W.3d

820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are

determined by state law.”).

      Appellant claims, “John Pizer alone was the party responsible for

producing, signing[,] and filing” the application containing the false affidavits.

Pizer testified that he did not doctor the two affidavits. He wrote the affidavit for

Hezmall, but Hezmall never returned his letters or phone calls. A copy of the


                                         9
letter Pizer sent to Hezmall was submitted into evidence. It was dated February

17, 2011. Appellant stated in his interview that Pizer sent him copies of the

drafted affidavit when he mailed it to Hezmall. Sides testified that she did not

recall ever receiving a letter asking her to sign an affidavit regarding Appellant.

      Pizer said that he received the Hezmall and Kendall affidavits “out of the

blue” and that he did not know who mailed them. After Appellant accused him of

falsifying the affidavits, Pizer wrote Appellant a letter stating,

              The affidavit from Priscilla came to me in the mail. I no longer
      remember where they came from[,] and if they came direct from
      Priscilla[,] I don’t know where she got my address, but there are
      several possibilities. I may have written her a very long time ago,
      but she did not respond[,] and so I never have had any
      correspondence with her.

      Appellant testified that he first became aware that Pizer had signed

Appellant’s name on the sixth application when Young came to interview him on

March 4, 2013.      But Appellant twice stated that on February 28, 2013, he

received a copy of what Pizer had filed on his behalf. He then said he must have

received it “maybe three or four days” after it was mailed. A letter from Appellant

to the district court clerk, dated February 21, 2013, states that Appellant mailed

the application on February 8, 2013. At trial, he explained that he said in the

letter to the district clerk that he had filed the application because “everything

Pizer’s done, it’s always had my name on the return address. And since the writ

is under my name, I couldn’t very well say that—Pizer’s writ, so I put I mailed it

off to you, so they’d be looking for my name.”



                                           10
         The notary whose name appears on the Kendall affidavit testified that she

had notarized a document for Vern Mason. Mason is Appellant’s brother-in-law.

The notary whose name appears on the Hezmall affidavit testified that she had

notarized a document for Rachel Guerra.          Guerra is Appellant’s sister and

Mason’s wife. Appellant claims that the notary stamps were not in his prison

files.   Young, however, testified that he found multiple copies of the Mason

affidavit (used to make the Kendall affidavit) and a copy of the Guerra affidavit

(used to make the Hezmall affidavit) in the documents removed from Appellant’s

cell.    Notes discussing “newly discovered evidence” from Appellant’s cell

reference an affidavit from “Priscilla Kendall recanting her testimony” and

Hezmall. The fourth application, signed by Appellant, includes an altered letter

from his trial attorney. The altered letter removed the trial attorney’s statements:

               I subpoened your treating physician, and he testified from the
         records. . . .

               You are forgetting that at the time of the trial your sister
         Rachel was against us. I read her affidavit, with interest. Often,
         family members will be remorseful about testifying against their own
         kin and change their stories after trial.

Appellant filed that writ application before he had contacted Pizer.

         In his taped interview, Appellant stated that he had a friend make the

affidavits “because everything [he had] tried to do legally [was] cut down through

the district court.” He said, “I was hoping that I would get a hearing where I could

bring in the other evidence that I have that wasn’t used in court to prove my

innocence.” He said that the Kendall affidavit was made by an inmate who has


                                         11
since been released. He told the inmate what to put in the affidavit, and the

inmate “chopped up” the documents to affix the notary stamp to it.

      Appellant told Young that he sent the fake affidavits to Pizer without telling

Pizer that they were false and that Pizer filed them. He said he understood what

he did was wrong and illegal. He went on, “I didn’t think y’all were gonna be

smart enough to look at the affidavit, I mean the notary.”              In his written

confession, Appellant said, “I [am] sorry for making these false documents. . . .

Please understand my reason, I knew it would come back and get me. . . . I know

I was in the wrong for this act but[] all I was trying to get was a hearing.”

      The jury was free to disbelieve Appellant’s statement that he received the

affidavits anonymously and his statement that he received them from Pizer, who

had received them anonymously.          The jury was also free to disbelieve that

Appellant did not intend for Pizer to file the writ or that Appellant was coerced into

confessing. The jury could have believed instead that Appellant, with the aid of

other inmates, fabricated the affidavits using old notary stamps found in

Appellant’s files and sent them to Pizer with the intent that Pizer file them with

Appellant’s writ application. See Waldrop v. State, 219 S.W.3d 531, 534 (Tex.

App.—Texarkana 2007, no pet.) (“[T]he plain language of Section 37.09 does not

require that the actor present the evidence in question directly to the investigating

agency.”). Viewing all of the evidence in the light most favorable to the verdict,

we hold that a rational trier of fact could have found beyond a reasonable doubt

that Appellant made, presented, or used the affidavits with knowledge of their


                                          12
falsity and with the intent to affect the course or outcome of the official

proceeding. See Tex. Penal Code Ann. § 37.09(a)(2); Jackson, 443 U.S. at 319,

99 S. Ct. at 2789. We overrule Appellant’s second point.

3. Disqualification and recusal

        In his third point, Appellant argues that Judge Walton should have been

disqualified or recused from presiding over the trial.            Judge Walton had

previously been counsel for Appellant in 1998 on an unrelated charge of sexual

abuse of a child. He also presided over the underlying indecency with a child

case.       In his pretrial motion to disqualify or recuse Judge Walton, Appellant

stated that he intended to call Judge Walton as a witness. At the hearing on the

motion before Judge Jeff Walker, 2 Appellant explained that as the judge in the

underlying case, Judge Walton was required to review all of Appellant’s

applications. Appellant argued that Judge Walton necessarily must have looked

at the forged affidavits and had not noticed anything wrong with them.              The

following exchange then took place:

        THE COURT: That’s evidence of nothing, quite frankly. I assume
        the State’s going to bring in experts to either testify as to handwriting
        or they’re going to bring in the supposed affiants who are going to
        testify, we didn’t sign these.

        [APPELLANT’S COUNSEL]: I suppose, Your Honor.

        2
         When a recusal motion is timely filed, rule of civil procedure 18a requires
a trial judge to either recuse himself or refer the motion to the regional presiding
judge to decide. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004);
see Tex. R. Civ. P. 18a; see also Arnold v. State, 853 S.W.2d 543, 544 (Tex.
Crim. App. 1993) (holding that rule 18a applies in criminal cases).


                                           13
      THE COURT: Neither one of those involves the judge.

At the end of the hearing, Judge Walker said,

            All right. Mr. Garza, I’m going to deny your motion for the
      simple reason that what you have wanted the judge to testify to
      probably is not admissible at the time of the hearing, and whether or
      not the judge thought the signatures looked funny or different or saw
      any problem with them, it’s not an issue. The issue is, were they
      forged? And the judge can hear that and render a judgment based
      upon the evidence that he receives at that time.

      Appellant first argues that Judge Walton was statutorily disqualified under

the code of criminal procedure. Article 30.01 states,

      No judge or justice of the peace shall sit in any case where he may
      be the party injured, or where he has been of counsel for the State
      or the accused, or where the accused or the party injured may be
      connected with him by consanguinity or affinity within the third
      degree, as determined under Chapter 573, Government Code.

Tex. Code Crim. Proc. art. 30.01 (West 2006).

      The portion of the statute that disqualifies a judge when “he has been

counsel for . . . the accused” requires “an affirmative showing that the judge

actually acted as counsel in the very case before him.”        Gamez v. State,

737 S.W.2d 315, 319 (Tex. Crim. App. 1987). The only evidence in the record is

that Judge Walton had previously been Appellant’s counsel in an unrelated

matter. Such previous representation did not disqualify him from presiding over

the present case. See Kuykendall v. State, 335 S.W.3d 429, 432 (Tex. App.—

Beaumont 2011, pet. ref’d) (“A judge is not disqualified simply because he has




                                        14
prosecuted or defended the accused in past cases.” (citing Hathorne v. State,

459 S.W.2d 826, 829 (Tex. Crim. App. 1970))).

      Appellant also appears to argue that Judge Walton was his victim of the

charged offense. The court of criminal appeals interpreted the phrase “may be

the party injured” to mean that a judge is disqualified “if the evidence shows that

he was among the defendant’s victims in the criminal transaction or episode at

issue, such that a reasonable person would harbor doubts as to the judge’s

impartiality.” Whitehead v. State, 273 S.W.3d 285, 289 (Tex. Crim. App. 2008).

Appellant’s argument is presumably based on the belief that Judge Walton was a

victim because as the presiding judge over the underlying indecency case and

associated postconviction proceedings, he read the false affidavits and was

perhaps tricked into believing in their authenticity. Yet there is no evidence that

Judge Walton believed the affidavits to be true or that reading them caused him

any injury. 3 See Lane v. State, 634 S.W.2d 65, 66 (Tex. App.—Fort Worth 1982,

no pet.) (“When perjury is committed in a judicial proceeding, it is the

administration of justice that suffers the offense, not the person or property of the

trial judge.”). Judge Walton was not Appellant’s victim in any sense that would

disqualify him from presiding over the perjury trial. See id. (holding that the trial

judge in front of whom perjury was committed was not disqualified from hearing

the subsequent perjury trial).

      3
       Judge Walton denied Appellant’s writ application prior to the hearing on
Appellant’s motion to recuse or disqualify him.


                                         15
      Appellant also argues that Judge Walton should have been recused under

rule 18b(b)(1) of the rules of civil procedure. See Tex. R. Civ. P. 18b(b)(1). We

review the denial of a motion to recuse under an abuse of discretion standard.

Tex. R. Civ. P. 18a(j)(1)(A). A trial court abuses its discretion if the court acts

without reference to any guiding rules or principles, that is, if the act is arbitrary or

unreasonable.     Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot

conclude that a trial court abused its discretion merely because the appellate

court would have ruled differently in the same circumstances. E.I. du Pont de

Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,

221 S.W.3d at 620. Nor does a mere error in judgment rise to an abuse of

discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985).

      We apply a reasonable person standard in determining whether a recusal

motion should have been granted. Duffey v. State, 428 S.W.3d 319, 325 (Tex.

App.—Texarkana 2014, no pet.) (citing Woodruff v. Wright, 51 S.W.3d 727, 736

(Tex. App.—Texarkana 2001, pet. denied)).               The question is whether a

reasonable member of the public at large, knowing all the facts in the public

domain concerning the judge’s conduct, would have a reasonable doubt that the

judge is actually impartial. Id. (citing Rogers v. Bradley, 909 S.W.2d 872, 881

(Tex. 1995)). Accordingly, the need for recusal is triggered only when a judge

displays an “attitude or state of mind so resistant to fair and dispassionate


                                           16
inquiry” as to cause a reasonable member of the public to question the objective

nature of the judge’s rulings. Ex parte Ellis, 275 S.W.3d 109, 117 (Tex. App.—

Austin 2008, no pet.) (quoting Liteky v. U.S., 510 U.S. 540, 557–58, 114 S. Ct.

1147, 1158 (1994) (Kennedy, J., concurring)).

      Courts enjoy a “presumption of judicial impartiality” that “is not defeated by

the mere assertion of bias based on a trial judge’s previous judicial relationship

with a defendant.” Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—

San Antonio 2007, pet. ref’d) (citing Durrough v. State, 620 S.W.2d 134, 143

(Tex. Crim. App. 1981)). The movant bears the burden of proving that recusal is

warranted, and it is a high one. Id. That burden is only satisfied when the

movant provides facts demonstrating the presence of bias or partiality “of such a

nature and extent as to deny the movant due process of law.” Ellis, 275 S.W.3d

at 117.

      As recited above, Judge Walker explained that he denied Appellant’s

motion for recusal because he did not believe that Judge Walton’s history with

Appellant would bear on any of the issues to be determined in the perjury trial.

Again, a previous judicial relationship with a defendant does not defeat the

presumption of judicial impartiality unless there is a reason to believe that the

judge has closed his mind to fair and dispassionate inquiry. Ellis, 275 S.W.3d

at 117; Abdygapparova, 243 S.W.3d at 198–99.          Judge Walker’s ruling that

Appellant had not met his burden of demonstrating Judge Walton’s impartiality




                                        17
was not outside the zone of reasonable disagreement and was therefore not an

abuse of discretion. We overrule Appellant’s third point.

4. Attorney’s fees and costs

      In his fourth point, Appellant argues that the trial court erred by ordering

him to pay attorney’s fees and costs. The trial court ordered that Appellant pay

$11,316.27 in court costs, $10,880.27 of which was for attorney’s fees.

      The State agrees that the trial court erred in assessing the attorney’s fees

against Appellant because he was indigent. See Mayer v. State, 309 S.W.3d

552, 556 (Tex. Crim. App. 2010) (“[A] 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.”). A trial court can order a

defendant to pay in part or in whole the costs of the legal services provided to

him if the court determines that the defendant has the financial resources that

enable him to pay.    Tex. Code Crim. Proc. art. 26.05(g) (West Supp. 2014).

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.

art. 26.04(p) (West Supp. 2014). Appellant was incarcerated throughout the trial,

was represented by court-appointed counsel at trial and on appeal, and there

was no evidence of any material change in his financial circumstances. We

therefore agree that trial court erred by assessing attorney’s fees as costs

against Appellant, and we sustain that portion of Appellant’s fourth point.


                                        18
See Vogt v. State, 421 S.W.3d 233, 246 (Tex. App.—San Antonio 2013, pet.

ref’d) (holding that trial court erred by assessing attorney’s fees against

defendant when record showed that court-appointed counsel represented

defendant at trial and on appeal).

      The State disagrees, however, that the remaining $436 in court costs were

erroneously assessed against Appellant.      A trial court can order an indigent

defendant to pay court costs provided payment is not demanded before the trial

court proceedings have concluded. Allen v. State, 426 S.W.3d 253, 259 (Tex.

App.—Texarkana 2013, no pet.); see also Williams v. State, 332 S.W.3d 694,

700 (Tex. App.—Amarillo 2011, pet. denied) (holding that legislatively mandated

court costs are “properly collectable by means of a withdrawal notification

regardless of a defendant’s ability to pay”). Appellant does not argue that any of

the fees assessed against him are not legislatively mandated. 4        Thus, we

overrule Appellant’s fourth point to the extent that it challenges the court costs

other than the attorney’s fees.




      4
         The Bill of Costs lists the following fees assessed against Appellant:
Capias Warrant Fee, Clerk’s Fee, Consolidated Court Costs Fee, Courthouse
Security Fee, Criminal E-Filing Conviction Fee, Criminal Technology Fee,
Indigent Defense Services Fee, Judicial Support Fee, Jury Reimbursement Fee,
Jury Trial Fee, Records Management and Preservation Fee, Restitution Fee,
Summoning Witness Fee, and Time Payment Fee. See Office of Court Admin.,
District    Clerk’s   Felony     Court     Cost   Chart   (Sept.   1,   2013),
http://www.txcourts.gov/media/681164/dc-felctcst090113.pdf (listing fees that
may be assessed and the statutes mandating them).


                                       19
                                    Conclusion

      Having sustained the portion of Appellant’s fourth point regarding the

assessment of attorney’s fees against him, we modify the judgment and bill of

costs to delete the assessment of $10,880.27 in attorney’s fees.          Having

overruled Appellant’s first three points and the remainder of his fourth point, we

affirm the trial court’s judgment as modified.



                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 28, 2015




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