                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00408-CR

TRISTAN LANDERS AKA TRISTAN MCNIEL,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-1101-C2


                          MEMORANDUM OPINION


      Tristan Landers a/k/a Tristan McNiel appeals from her conviction for the offense

of tampering with a witness. TEX. PEN. CODE ANN. § 36.05(a)(1). Landers complains

that the evidence was insufficient to prove an intent to coerce a prospective witness and

that the trial court improperly imposed the cost of the attorney pro tem and investigator

as court costs. We affirm the judgment of the trial court.
Sufficiency of the Evidence

         Landers complains that the evidence was insufficient for the jury to have found

that she had an intent to coerce a witness. Section 36.05(a)(1) of the Penal Code, entitled

"Tampering with Witness," provides that a person commits the offense of tampering

with witness if, with intent to influence a witness, she coerces a witness or prospective

witness in an official proceeding to testify falsely. TEX. PENAL CODE ANN. § 36.05(a)(1).

The Penal Code defines "coercion" in relevant part as "a threat, however communicated

… to expose a person to hatred, contempt, or ridicule…." TEX. PEN. CODE ANN. § 1.07

(a)(9)(D).

        When reviewing the sufficiency of the evidence, we view 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."         Brooks v.

State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The jury, as the factfinder, is the sole

judge of the credibility of witnesses and the weight to be given to their testimonies, and

we will not usurp this role by substituting our own judgment for that of the jury. Id. at

899. Our duty is simply to ensure that the evidence presented supports the jury's

verdict and that the State has presented a legally sufficient case of the offense charged.

Williams v. State, 235 S.W.3d 742, 750, 753-54 (Tex. Crim. App. 2007). When we are faced

with a record that supports contradicting inferences, we presume that the jury resolved


Landers v. State                                                                      Page 2
any such conflicts in favor of the verdict, even if that resolution is not explicitly stated in

the record. Brooks, 323 S.W.3d at 900 n.13 (citing Jackson, 443 U.S. at 326).

Facts

        Shortly after Landers got married to Jeremy Landers, her 9-year-old daughter,

A.M., made an allegation of sexual assault against Jeremy Landers to a family friend in

late August of 2008. The family friend convinced A.M. to tell Landers's aunt, with

whom A.M. spent a significant amount of time. Landers's aunt called Landers to tell

her about the outcry and took A.M. to the police department. Landers met them there

and they made a report to the police. A.M. later gave a forensic interview regarding the

incident and Jeremy Landers was arrested and ultimately convicted of the offense. The

Department of Family and Protective Services became involved when the initial

allegation was made and required Landers to sign a safety plan that she would not

allow Jeremy Landers to have any contact with the children.               At this point, the

Department and the police believed Landers would be protective of A.M. and her

siblings.

        Shortly after Jeremy Landers's arrest in September of 2008, however, Landers's

attitude toward A.M. changed. A.M. became convinced that her mother did not believe

her regarding the allegations. Landers would openly tell others that A.M. was lying.

Landers advised the TDFPS investigator that A.M. was recanting and that she may have

made up the allegations, although A.M. had not wavered from her allegations to


Landers v. State                                                                         Page 3
anyone else. By December of 2008, A.M.'s grades and appearance seriously deteriorated

and she became isolated from her friends. She could not discuss Jeremy or her mother

without "sobbing uncontrollably."

        At some point while A.M. was still living with Landers, A.M. and Landers were

sitting together at a dining table and Landers was "trying to get me to say that it didn't

happen," according to A.M. A.M. also stated that Landers also said "but you were told

that liars go to hell; is that right?" A.M. believed that Landers was trying to get her to

change her story. Landers had also told Landers's grandmother who also seemed to not

believe A.M. and also expressed that liars go to hell to A.M., which made A.M. feel that

more of her family was turning against her.

        Additionally, in February of 2009, Landers picked A.M. and her sister L.M. up

from school one day and drove them to Dallas without telling them why they were

going. An investigator for TDFPS believed that A.M. was taken to a deposition being

taken by Jeremy's attorneys. A.M. said that a person was typing down what she was

saying during the interview.      On the way, Landers told A.M. "not to tell what

happened." A.M. said that she was not asked about the sexual assault during the

interview. After this trip, A.M. and her siblings were removed from Landers's custody

by TDFPS because of Landers's disbelief of A.M.'s story and the significant deterioration

of A.M.'s emotional well-being.




Landers v. State                                                                    Page 4
        Shortly after the removal, a psychological evaluation was performed on A.M. by

Dr. Lee Carter. During the evaluation, A.M. brought up the incident and told Dr. Carter

that Landers did not believe her and would tell that to others. A.M. discussed the trip

to Dallas where she was told "not to tell them what happened," which Dr. Carter felt

implied that Landers wanted A.M. to lie about the incident. After making the outcry,

A.M. began having stomach aches, problems sleeping, and was hearing voices in her

head which were attributed to anxiety and depression. A.M. also told Dr. Carter about

the incident at the dining table where Landers was trying to get her to say the abuse did

not occur and how she felt that Landers was on Jeremy Landers's side rather than hers.

        At a supervised visit with A.M., Landers leaned over and told A.M. words to the

effect that she was a liar which made A.M. feel badly. The visits were terminated after

this and ultimately Landers voluntarily relinquished her parental rights to A.M. and her

siblings approximately six months after Jeremy Landers was convicted.

        Landers argues that the evidence was insufficient to establish an intent to coerce

A.M. to change her story, that is that there was no actual or implicit threat made as

required by the definition of "coercion." We disagree. The jury, as factfinder, was in the

position of determining the credibility of the witnesses and to the degree that Landers's

statements could contain contradictory inferences, we will presume that the jury

resolved those conflicts, if any, in favor of the verdict. Brooks, 323 S.W.3d at 899, 900

n.13.


Landers v. State                                                                    Page 5
        The undisputed evidence showed that Landers repeatedly called A.M. a liar to

A.M. directly and to others, which made A.M. feel that others in her family did not

believe her either. At the dining table, Landers tried to get A.M. to change her story

and to "say that it didn't happen." On the way to Dallas, Landers told A.M. "not to say

what happened," which could have reasonably been viewed by the jury as an

acknowledgment by Landers that it did, in fact, occur but that Landers wanted A.M. not

to disclose it or to lie about it.

        The pressure Landers placed on A.M. to change her story led to significant

emotional distress, anxiety, and depression. Each time Landers attempted to discredit

A.M. or called her a liar in front of others certainly could be considered not only a threat

but also as attempts to in fact "expose [A.M.] to hatred, contempt, or ridicule…." TEX.

PEN. CODE ANN. § 1.07 (a)(9)(D). Additionally, the jury could reasonably infer that

when Landers told A.M. "not to say what happened" on the way to Dallas that she was

telling A.M. not to tell the truth. After Jeremy Landers's conviction, Landers choice to

sever her relationship with A.M. permanently by relinquishing her parental rights to

A.M. and her siblings could reasonably have been viewed by the jury as demonstrating

that because her attempted coercive measures failed, Landers followed through on the

threat of exposing A.M. to "hatred, contempt, or ridicule" by actually exposing A.M. to

"hatred, contempt, or ridicule." We find that the evidence was sufficient. We overrule

issue one.


Landers v. State                                                                      Page 6
Imposition of Special Prosecutor and Investigator Fees as Court Costs

        In her second issue Landers complains that the trial court erred by assessing the

costs of the special prosecutor and investigator appointed to prosecute her case as court

costs against her because it lacked the statutory authority to do so and that the evidence

was insufficient to sustain the assessment. The State argues that Landers failed to

preserve the error regarding the statutory authority to assess the attorney's fees by

failing to object to the trial court. See TEX. R. APP. P. 33.1.

        Except for complaints involving systemic or absolute requirements, or rights that

are waivable only, all other complaints, whether constitutional, statutory, or otherwise,

are forfeited by failure to comply with Texas Rule of Appellant Procedure 33.1(a). See

Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). We do not find that

Landers's complaints involve systematic requirements or waivable only rights. See id.;

Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (discussing examples of

waivable only rights). Thus, in order to preserve her complaint for appellate review,

Landers was required to make a timely request, objection, or motion with sufficient

specificity to apprise the trial court of this complaint. See TEX. R. APP. P. 33.1(a); Johnson

v. State, 365 S.W.3d 484, 491 (Tex. App.—Tyler 2012, no pet.).

        Landers further argues that the evidence was insufficient to support the

assessment of those costs pursuant to Mayer v. State. See Mayer v. State, 309 S.W.3d 552

(Tex. Crim. App. 2010). Mayer held that when a defendant is found to be indigent


Landers v. State                                                                        Page 7
during the proceedings, there is a presumption that the defendant remains indigent

unless the State provides evidence of a change in the defendant's financial

circumstances that show an ability to repay court-appointed attorney's fees. Mayer, 309

S.W. 3d at 557; TEX. CODE CRIM. PROC. ANN. art. 26.04(p). The State contends that the

assessment of the attorney pro tem's fees were not assessed pursuant to article 26.05 of

the Code of Criminal Procedure and therefore, Landers's ability to pay is irrelevant.

Ultimately, however, we need not determine whether article 26.05 applies to the

assessment of the fees of the attorney pro tem because the presumption of indigence in

Mayer did not apply in this case at the time of the assessment. See TEX. R. APP. P. 47.1.

        In this case, the trial court determined that Landers was not indigent at the outset

of the proceedings. Landers was not found to be indigent until after her conviction for

purposes of appeal. Therefore, absent any evidence to the contrary, the presumption of

indigence does not apply to the proceedings prior to the finding of indigence. Landers

does not contend that she was indigent during the trial proceedings or of the sufficiency

of the evidence regarding her financial condition prior to the entry of the judgment. We

overrule issue two.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.



                                           TOM GRAY
                                           Chief Justice


Landers v. State                                                                       Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 30, 2012
Do not publish
[CR25]




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