                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00249-CR



            EMMANUEL MUNOZ, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
               Red River County, Texas
               Trial Court No. CR01362




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                               MEMORANDUM OPINION
       Jennifer Nolan was awakened by pain in her anus and removed Emmanuel Munoz’s hand

from it. She testified that one leg of her underwear had been torn and that her sensations led to

the conclusion that Munoz had placed fingers inside her anus. Later that day, Munoz admitted to

Bogota police officer Jacob Stinson at their first contact that Munoz had been trying to be

intimate with his wife. Nolan and Munoz had been divorced some years ago, but were living

together, as Nolan provided needed care to the physically unwell Munoz.

       Munoz appeals from the resulting revocation of his community supervision, asserting that

the evidence is insufficient to support the revocation and that the attorneys’ fees were

erroneously assessed against him. We modify the judgment to remove the attorneys’ fees

assessment and affirm the judgment as modified.

(1)    Sufficient Evidence Supports the Revocation of Munoz’s Community Supervision

       We review for an abuse of discretion the trial court’s decision to revoke community

supervision. Meyer v. State, 366 S.W.3d 728, 729 (Tex. App.—Texarkana 2012, no pet.). When

the revocation order is supported by a preponderance of the evidence, the trial court does not

abuse its discretion. Id. at 729–30. We review the evidence in the light most favorable to the

trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). If a single

ground for revocation is supported by a preponderance of the evidence and is otherwise valid,

then an abuse of discretion is not shown. Lively v. State, 338 S.W.3d 140, 143 (Tex. App.—

Texarkana 2011, no pet.). We must respect the trial court’s role in evaluating witness credibility,

resolving conflicts in the evidence, and drawing reasonable inferences from the evidence. We


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must assume the trial court resolved evidentiary issues in a way that supports the judgment.

Meyer, 366 S.W.3d at 730.

       The question here centers on Nolan’s testimony that she believes her ex-spouse, with

whom she shared a bed, had placed fingers inside her anus while she slept, causing her

considerable pain. Her belief was based on the living arrangement, her pain, her awaking to slap

Munoz’s hands away, and her torn underwear. We conclude that this is sufficient evidence to

find sexual assault and to justify the revocation of Munoz’s community supervision.

       Nolan and Munoz had divorced in 2008.          Munoz had been placed on community

supervision in 2009. He was released from drug counseling in April 2012, and Nolan and their

children moved back in with him then. On September 26, 2012, he was in an automobile

accident that resulted in a lengthy hospitalization—with some time on life support—and

ultimately left him a paraplegic confined to a wheelchair. After the accident, she acted as his

caretaker, and she and the children lived with him. It appears that they were supported solely by

his disability checks.

       Stinson testified that, around 5:30 p.m., August 24, 2013, while Stinson was driving

down a road, Munoz flagged him down and asked him to remove Nolan from the house,

claiming, “[S]he’s crazy” and stating that he was tired of dealing with her. While Stinson and

Munoz talked in the driveway, Nolan came out of the house crying and told Stinson about the

assault earlier in the day. When Stinson asked Munoz about it, Munoz said she was his wife and

“he was just trying to be intimate with her.”




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       There is some internal inconsistency in the evidence, but the incident occurred either at

4:00 a.m. or, as Nolan testified at trial, around 11:30 a.m. Stinson stated that he had had other

calls to their residence, but declined the State’s effort to characterize the relationship between

Nolan and Munoz as “stormy,” as the calls had all been concerning their children.

       The State summarized a statement that Nolan made to the Sexual Assault Nurse

Examiner (SANE). The statement quoted Nolan:

       [I] woke up because I felt pain in my rectum and felt like he was cramming
       several fingers in my anus. My rear end is still hurting . . . when I woke up, I
       asked him what he was doing. I grabbed his hand threw it off of me. I told him
       that he could not do things like that when I’m sleeping.

Nolan agreed that this is what she had told the nurse.

       Nolan reiterated her statements and attempted to clarify the misunderstanding about the

time this occurred. The officer had been told it occurred about 4:00 a.m., but other evidence

suggested that it had actually occurred around 11:00 a.m. Nolan testified that, when she awoke

in pain and went to the bathroom, although her shorts were intact, her underwear had been torn

off of one leg. She was questioned about why she had not called police if she believed herself

assaulted, but could provide no explanation for her inaction. She testified that she had screamed

at him, spat in his face, and asked him how he could do that to her.

       Nolan also testified about Munoz’s present physical condition. He is confined to a

wheelchair, is not sexually functional, and had been out of the hospital a fairly short time after

spending several months recuperating from the accident. She testified that he has “a wound that

is deep enough to stick your head in. He just had a port going into his heart. He has staph

infection. He’s very ill.”
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       The State had no recommendation for punishment. The State erroneously informed the

court that the punishment range was two-to-twenty years, but was corrected by defense counsel,

who informed the court that the range of punishment was two-to-ten years’ confinement on the

underlying third degree felony. The court then found that Munoz had committed aggravated

sexual assault, but the State ultimately corrected that misstatement, as the allegation was of

sexual assault.   The court found the allegations true and sentenced Munoz to ten years’

confinement.

       The evidence is legally sufficient. The trial court did not abuse its discretion in finding

that Munoz had violated a condition of his community supervision.

(2)    Attorneys’ Fees Were Erroneously Assessed Against Munoz

       Munoz also contends that, because he is indigent, the court erred in assessing $900.00 in

attorneys’ fees against him. Court-appointed attorneys’ fees cannot be assessed against an

indigent person unless there is proof and a finding that he or she is no longer indigent. Cates v.

State, 402 S.W.3d 250 (Tex. Crim. App. 2013); Mayer v State, 309 S.W.3d 552 (Tex. Crim. App.

2010). In this case, there is no such evidence or finding. The judgment is therefore faulty in this

regard. The proper remedy is not to reverse the conviction, but merely to modify the judgment

and remove the fee award. Cates, 402 S.W.3d 250; Martin v. State, 405 S.W.3d 944 (Tex.

App.—Texarkana 2013, no pet.).




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       We modify the judgment of the trial court to delete the fees of Munoz’s court-appointed

attorney. As modified, the judgment is affirmed.




                                            Josh R. Morriss, III
                                            Chief Justice

Date Submitted:       July 7, 2014
Date Decided:         July 10, 2014

Do Not Publish




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