                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00689-CR

                                       Derrick Wayne HUNT,
                                              Appellant

                                                v.
                                             The State
                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR10485
                          The Honorable Melisa Skinner, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 28, 2014

AFFIRMED AS MODIFIED

           A jury found Derrick Wayne Hunt guilty of capital murder, and the trial court sentenced

him to life in prison without the possibility of parole. On appeal, Hunt raises issues involving the

Confrontation Clause, admission of purported hearsay evidence, alleged jury charge error, and

assessment of court costs and attorney’s fees. We modify the trial court’s judgment with regard

to court costs and attorney’s fees and affirm the judgment as modified.
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                                           BACKGROUND

       In the early morning hours of October 10, 2011, John Dexter, a taxi driver in San Antonio,

was dispatched to Foss Meadows Drive. Dexter activated his meter at 3:48 A.M. At 4:03 A.M.,

Dexter stopped at a nearby convenience store and purchased a pack of gum with a twenty dollar

bill and received $19.62 in change. On his way out of the store, Dexter encountered San Antonio

Police Department Officer James Phelan, who was taking a break. Dexter told Officer Phelan that

he believed his current customer would not pay the fare. Officer Phelan offered to speak with the

customer, but Dexter declined, stating that he would call the police if the fare was not paid. Officer

Phelan observed a black male sitting in the back seat of the taxi before Dexter left and drove away

at 4:05 A.M.

       Several minutes later, Daniel Solis was sleeping in his home on Sunrise Pass when he was

awakened by five to six loud banging noises. He looked out his front window and observed

Dexter’s taxi in the street with the engine running. After several minutes, the taxi slowly moved

forward and collided with the back of a parked vehicle. Solis went outside to investigate and found

Dexter sitting in the driver’s seat, bleeding. Solis opened the driver’s door, placed the taxi in park,

and called 911. Officer Phelan, the first officer to respond to the scene, arrived at 4:15 A.M. He

encountered Solis standing in the street and observed Dexter unconscious in the driver’s seat, still

restrained by his seatbelt. Officer Phelan observed that Dexter had been shot several times and

had no pulse. The medical examiner later determined that Dexter was shot six times in his head

and upper body. The medical examiner testified that the bullets were fired from behind Dexter at

an intermediate close range. Spent shell casings and bullet fragments found at the crime scene

were consistent with bullets fired from a semi-automatic handgun. No money was found at the

crime scene, except for sixty-two cents found in Dexter’s pocket.



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       Police investigators subsequently discovered footprints in the mud consistent with

someone traveling way from the taxi, through a fenced backyard, and toward the street neighboring

Sunrise Pass. The taxi company provided a recording of the phone call placed by Dexter’s final

customer requesting taxi service from Foss Meadows Drive. On the recording, the caller identified

himself as “Tyrone Callahan.” Police eventually tracked the phone number of the caller to a cell

phone registered to Marsheila Williams and used by her son, Carnel Walker.

       Walker testified that he and several friends, including Hunt, went to a nightclub on the

night of October 9, 2011. Afterwards, the friends met at a fast food restaurant. Walker left the

restaurant with a friend, who drove him home. Several hours later, Savawn Kyle gave Hunt and

Terrance Scott a ride to Scott’s home. Upon arriving at Scott’s home, Hunt asked Kyle to take

him to Walker’s home.      During the ride, Hunt asked Kyle to instead take him to Hunt’s

grandparents’ home. Kyle declined and dropped Hunt off at Walker’s home. Hunt knocked on

the front door and spoke with Walker in the front yard. Walker refused to allow Hunt to sleep at

his house because Walker’s mother had a policy prohibiting overnight guests. Walker gave Hunt

the phone number for a taxi and allowed Hunt to use his cell phone. Walker testified that Hunt

called for a taxi using the name “Tyrone.” Before the taxi arrived, Walker went back inside to

sleep, but instructed Hunt to leave his cell phone inside and lock the door behind him.

       The next morning, police contacted Williams and asked her come to the police station to

discuss a homicide investigation. Williams relayed this information to Walker and then went to

the police station. While she was away, Walker buried his cell phone in a neighbor’s backyard.

Walker subsequently consented to an interview with police detectives and told them that Hunt

called him after leaving his house and stated that he had killed someone. Walker also told police

that he observed that Hunt had a black semi-automatic handgun on the morning of the murder. At

trial, Walker remembered telling police the information, but could no longer recall whether the
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information was true. Walker subsequently led police to his buried cell phone. He testified that

he buried the phone because he was scared after learning that his mother was being questioned

regarding a homicide.

       Hunt’s grandparents’ home is located on the street behind Sunrise Pass, the site of the

murder. Hunt’s grandfather, William Bell, told police that Hunt knocked on his door during the

4:00 A.M. hour on October 10, 2011. Bell allowed Hunt into the house where he went to sleep.

Bell testified that at the time, he heard police sirens and a helicopter and could see flashing

emergency lights on the neighboring street. Bell subsequently allowed investigators to search

Hunt’s room, but they found nothing connecting Hunt to the crime scene. Police did, however,

recover a latent fingerprint on the exterior of the taxi matching Hunt’s fingerprint. Hunt consented

to an interview with police, but denied that he had been in a taxi on the morning of the murder,

claiming that he had received a ride home from his girlfriend, Raquel Fumbanks. During the

interview, investigators asked Hunt to pronounce several street names, including “Callaghan.”

Immediately thereafter, Hunt requested to terminate the interview. At trial, Fumbanks denied that

she ever gave Hunt a ride home. After listening to the recording of the phone call requesting taxi

service, she identified the voice of “Tyrone Callahan” as that of Hunt.

                         ADMISSION OF COMPLAINANT’S STATEMENTS

       Hunt contends the trial court’s denial of his motion to suppress Dexter’s statements to

Officer Phelan was erroneous because the statements violated his constitutional right to confront

witnesses and also constituted inadmissible hearsay.

       A. Motion to Suppress

       Consistent with his testimony at the suppression hearing, Officer Phelan testified as

follows, at trial, regarding his exchange with Dexter:



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        Q: And this cabdriver that came in, did he strike up a conversation with you?

        A: Yes. He — he was friendly. He walked in. And myself and the clerks were kind
        of talking with each other and stuff like that. And he said that there might be some
        excitements [sic] on that night. That he felt like that the — his passenger was going
        to jump the — jump the fare. He was going to take off on the fare. I said, Do you
        want me to go check him out? And he said, No, I’ll just give you a call. And I saw
        him walk out the door. And I said, Okay, well just let us know. And I watched
        him drive away.

Officer Phelan testified that although Dexter was “apprehensive,” he did not appear to be afraid

and was smiling and laughing during the encounter.

        When reviewing a trial court’s ruling on a motion to suppress, we view all of the evidence

in the light most favorable to the trial court’s ruling, giving “almost total deference to a trial court’s

determination of historical facts that are supported by the record, particularly if the findings of fact

are based on credibility and demeanor.” Miller v. State, 393 S.W.3d 255, 262 (Tex. Crim. App.

2012). Questions of law and mixed questions of law and fact that do not turn on the evaluation of

credibility and demeanor are reviewed de novo. Id. at 262–63. A trial court’s determination of

whether the Confrontation Clause has been implicated by a testimonial statement is a question of

law that we review de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

        The Sixth Amendment’s Confrontation Clause provides “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.

amend. VI.      This fundamental constitutional right is applicable to both federal and state

prosecutions by virtue of the Fourteenth Amendment. Shelby v. State, 819 S.W.2d 544, 546 (Tex.

Crim. App. 1991). Even if a statement is otherwise admissible under evidentiary rules, it may be

barred by the Confrontation Clause if the defendant is not afforded an opportunity to confront the

out-of-court declarant who provides testimonial evidence. Gonzalez v. State, 195 S.W.3d 114, 116

(Tex. Crim. App. 2006). The Confrontation Clause bars the admission of “testimonial” evidence

at trial unless the witness who made the statement either: (1) testifies subject to cross-examination
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at trial; or (2) is unavailable and the defendant had a prior opportunity to cross-examine him.

Melendez-Diaz v. Mass., 557 U.S. 305, 309 (2009); Burch v. State, 401 S.W.3d 634, 636 (Tex.

Crim. App. 2013).

       What constitutes “testimonial” evidence has continued to be defined by the courts. Burch,

401 S.W.3d at 636; see Crawford v. Washington, 541 U.S. 36, 68 (2004) (expressly declining to

provide a comprehensive definition of what evidence is “testimonial”). A statement is testimonial

when “made under circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.” Langham v. State, 305 S.W.3d 568,

576 (Tex. Crim. App. 2010) (quoting Crawford, 541 U.S. at 51–52). At a minimum, testimonial

statements are those which are “formal and similar to trial testimony.” Burch, 401 S.W.3d at 636.

Thus, testimonial evidence includes “prior testimony at a preliminary hearing, before a grand jury,

or at a former trial[,]” as well as “[s]tatements taken by police officers in the course of

interrogations.” Crawford, 541 U.S. at 52, 68. Statements made in response to police inquiries

are non-testimonial, however, when the circumstances of the interrogation “objectively indicate

its primary purpose was to enable police assistance to meet an ongoing emergency.” Davis v.

Washington, 547 U.S. 813, 828 (2006).

       Thus, the testimonial nature of an interrogation is determined by objectively evaluating its

“primary purpose.”     Michigan v. Bryant, 131 S.Ct. 1143, 1160 (2011).            In making this

determination, the focus is not on the “subjective or actual purpose of the individuals involved in

a particular encounter, but rather the purpose that reasonable participants would have had, as

ascertained from the individuals’ statements and actions and the circumstances in which the

encounter occurred.” Id. at 1156. “If the objective purpose of the interview is to question a person

about past events and that person’s statements about those past events would likely be relevant to



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a future criminal proceeding, then they are testimonial.” Coronado v. State, 351 S.W.3d 315, 324

(Tex. Crim. App. 2011).

        Hunt concedes that Dexter’s encounter with Officer Phelan cannot be characterized as an

interrogation. Nevertheless, he contends that Dexter’s statements were testimonial because he

made them to a police officer, they were later used in a criminal prosecution, and they were not

made in the context of an ongoing emergency.

        Evaluating the circumstances of the encounter objectively, we cannot conclude that Dexter

would have reasonably believed that the primary purpose of his statements was to “establish or

prove past events potentially relevant to a later criminal prosecution.” Bryant, 131 S.Ct. at 1154–

55 (emphasis added) (quoting Davis, 547 U.S. at 822). Most critically, the encounter occurred

before the crime was committed and there is nothing to suggest that Dexter anticipated his

imminent murder. See Brown v. Epps, 686 F.3d 281, 288 (5th Cir. 2012) (holding that statements

were not testimonial when they concerned future criminal activity and the declarants could not

have reasonably anticipated a trial). At most, Dexter’s statement reflected his belief that he may

soon be the victim of the crime of theft of service. 1 Even then, he could not have reasonably

believed that his statement would be useful in any later trial for that offense because any evidence

of theft by service would have consisted of Dexter’s testimony of the actual event, not testimony

of his earlier predictive statements to Officer Phelan.

        Moreover, the informal circumstances of the encounter support a conclusion that Dexter’s

statements were not testimonial. See Bryant, 131 S.Ct. at 1166 (considering the informality of an

encounter); United States v. Polidore, 690 F.3d 705, 712 (5th Cir. 2012) (identifying “level of

formality” as a factor); Burch, 401 S.W.3d at 636 (stating that testimonial statements are formal).


1
 Presuming “intent to avoid payment” if “the actor absconded without paying for the service . . . .” TEX. PENAL CODE
ANN. § 31.04(b)(1) (West Supp. 2013).

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Although statements to the police tend to indicate a more formal encounter, such is not the case

when, as here, there was no interrogation and the exchange was initiated by the witness/declarant.

Spencer v. State, 162 S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)

(spontaneous statement to police not testimonial); Wilson v. State, 151 S.W.3d 694, 698 (Tex.

App.—Fort Worth 2004, pet. ref’d) (interaction initiated by witness/declarant not testimonial);

Lagunas v. State, 187 S.W.3d 503, 520 (Tex. App.—Austin 2005, pet. ref’d) (statements given in

response to police officer’s preliminary questions not testimonial where officer did not have time

to formulate structured questioning). The record establishes that Dexter engaged Officer Phelan

in casual conversation as Dexter was walking out of the store, speaking to him for a little over a

minute. Although Dexter expressed concern about his customer, he declined Officer Phelan’s

offer of assistance and was smiling and laughing. These facts illustrate a chance encounter

followed by a jovial exchange, far from the “solemn declaration” characteristic of a testimonial

statement. Crawford, 541 U.S. at 51.

          Accordingly, we hold that Dexter’s statements to Officer Phelan were not testimonial. The

trial court did not err in determining that their admission was not barred by the Confrontation

Clause.

          B. Hearsay Evidence

          A statement not barred by the Confrontation Clause may still be inadmissible under the

rules of evidence. See Gonzalez, 195 S.W.3d at 116. A non-constitutional error resulting in the

admission of hearsay evidence is harmless, however, if it does not affect the “substantial rights”

of the defendant. TEX. R. APP. P. 44.2(b); see Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998) (erroneous admission of hearsay is non-constitutional error).           Such an error is

reversible “only when it has a substantial and injurious effect or influence in determining the jury’s

verdict.” Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). We will not overturn the
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conviction “if we have fair assurance from an examination of the record as a whole that the error

did not influence the jury, or had but [a] slight effect.” Id. In reviewing the record, we consider

“any testimony or physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, the character of the alleged error and how it might be considered

in connection with other evidence in the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.

App. 2000).

       We will assume, without deciding, that Dexter’s statements to Officer Phelan were

inadmissible hearsay. Hunt argues the admission of the statements was not harmless because

without them, the jury had insufficient evidence with which it could have found that he committed

robbery, the offense that aggravated the murder to capital murder. After reviewing the entire

record and all evidence presented to the jury, we disagree.

       The jury was presented with strong circumstantial evidence to support its finding that Hunt

murdered Dexter. Kyle testified that he drove Hunt to Walker’s house on the morning of the

murder. During the drive, Hunt indicated his desire to go to his grandparents’ house. Walker told

police that when Hunt came to his house, he was carrying a semi-automatic handgun. Walker

testified that Hunt used Walker’s cell phone to call a taxi and used the alias “Tyrone.” A recording

of the phone call requesting the taxi service was played to the jury wherein the caller identifies

himself as “Tyrone Callahan.” Fumbanks, Hunt’s girlfriend, testified that the voice of the caller

on the recording belonged to Hunt. Hunt’s grandmother testified that Hunt called her around this

time to tell her he would be home shortly. Phone records corroborated the phone calls from

Walker’s cell phone to the taxi service and to Hunt’s grandmother. The taxi’s computer system

documented that Dexter picked up a passenger at Walker’s house several minutes after the call

requesting service. A few minutes after that, Dexter stopped at the convenience store, and Officer

Phelan observed a black male sitting in the back seat of the taxi. Hunt is a black male. Electronic
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GPS records maintained by the taxi service established that Dexter made no stops between the

convenience store and the crime scene. Several minutes after Dexter left the store, Solis was

awakened by loud banging and subsequently discovered Dexter’s lifeless body in the taxi. Dexter

was shot from behind six times with a semi-automatic handgun. Hunt’s fingerprint was later found

on the outside of the taxi. Muddy footprints led from the area of the taxi and to the neighboring

street where Hunt’s grandparents lived. Hunt’s grandfather testified that shortly after the time of

the murder, Hunt knocked on his front door as first responders were descending on the nearby

crime scene. Walker told police that after Hunt left his house, Hunt called and told Walker that he

had killed someone. Phone records indicated several calls from Hunt’s grandparents’ home phone

to Walker’s cell phone between 4:12 A.M. and 5:14 A.M. and one call from Walker’s cell phone to

Hunt’s grandparents’ home phone at 5:42 A.M. From this evidence, a rational juror could conclude

that Hunt was Dexter’s only passenger and was his murderer.

       The jury was also presented with evidence that Dexter was robbed by his murderer. Video

surveillance and records from the convenience store established that Dexter had $19.62 in cash

when he left the store, but when his body was found minutes later, he only had sixty-two cents in

change. A rational juror could conclude that the same person who murdered Dexter also took the

nineteen dollars. Because Dexter was murdered “in the course of committing theft,” the jury could

rationally conclude that Hunt committed robbery and thus, capital murder. See TEX. PENAL CODE

ANN. § 29.02 (West 2011); TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013). All of these

rational inferences could be made without evidence of Dexter’s statement anticipating that Hunt

would not pay the fare. Accordingly, we hold that the evidence of Dexter’s statements to Officer

Phelan had no substantial influence on the jury’s verdict and had but only a slight effect. See

Amador v. State, 376 S.W.3d 339, 345 (Tex. App.—Houston [14th Dist. 2012, pet. ref’d)

(admission of victim’s statement to police officer identifying robber harmless where identity
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established by other evidence); see also Barnum v. State, 7 S.W.3d 782, 791 (Tex. App.—Amarillo

1999, pet. ref’d) (admission of victim’s hearsay statement predicting own murder by defendant

harmless given strong circumstantial evidence establishing the same).

                                 ACCOMPLICE WITNESS INSTRUCTION

        In his next point of error, Hunt contends that he was entitled to a jury instruction on

accomplice witness testimony pursuant to Article 38.14 of the Texas Code of Criminal Procedure 2

because the evidence established that Walker was an accomplice-in-fact. The trial court denied

the instruction after determining that Walker was not an accomplice. Hunt contends that the

question of whether Walker was an accomplice should have been submitted to the jury. The State

argues that the evidence clearly establishes that Walker was not an accomplice, neither as a matter

of law nor as a matter of fact.

        If the evidence clearly shows that an accomplice witness is an accomplice as a matter of

law, the trial court must provide the accomplice-witness jury instruction. Cocke v. State, 201

S.W.3d 744, 748 (Tex. Crim. App. 2006). A witness is an accomplice as a matter of law when

“the witness has been, or could have been indicted for the same offense . . . or a lesser-included

offense.” Id. “If, however, the parties present conflicting or unclear evidence as to whether a

witness is an accomplice, the jury must first determine whether the witness is an accomplice as a

matter of fact.” Id. If “the evidence is clear that the witness is neither an accomplice as a matter

of law nor as a matter of fact,” the trial court is not required to give the jury instruction. Id.

        “An accomplice is someone who participates with the defendant before, during, or after the

commission of a crime and acts with the required culpable mental state.” Druery v. State, 225



2
 “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to
connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the
commission of the offense.” TEX. CODE. CRIM. PROC. ANN. art. 38.14 (West 2005).

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S.W.3d 491, 498 (Tex. Crim. App. 2007). To be an accomplice, a witness’s “participation with

the defendant must have involved some affirmative act that promotes the commission of the

offense with which the defendant is charged.” Id. A witness is not an accomplice merely because

he was present at the crime scene or because he concealed knowledge of the offense. Id.

       Hunt contends that Walker was an accomplice because he: (1) provided the cell phone Hunt

used to call the taxi; (2) provided Hunt with the phone number for the taxi service; (3) knew that

Hunt used an alias to request the taxi; and (4) knew that Hunt was carrying a gun. Hunt also

contends that Walker was an accomplice because he buried the cell phone after Hunt told him that

he had murdered the taxi driver and after he learned that the phone was the subject of a homicide

investigation.

       We disagree with Hunt’s contentions and conclude the evidence clearly establishes that

Walker was not an accomplice to the murder. Walker could not have reasonably believed that

Hunt would murder Dexter merely because Hunt used an alias and carried a gun. Thus, Walker

did not commit an affirmative act to promote the murder “with the required culpable mental state”

by merely facilitating Hunt’s call to the taxi service. See Paredes v. State, 129 S.W.3d 530, 536,

537–38 (Tex. Crim. App. 2004) (witness not an accomplice where evidence suggested that witness

may have suspected foul play but no evidence that witness assisted in the preparation or planning

of murders); see also Bell v. State, No. 01-10-00873-CR, 2012 WL 1649889, at*6 (Tex. App.—

Houston [1st Dist.] May 10, 2012, no pet.) (mem. op., not designated for publication) (evidence

that witness knew or should have known that her conduct was wrongful not sufficient to establish

the culpable mental state necessary to be an accomplice for murder). Further, the fact that Walker

buried his cell phone after learning that it was evidence in the murder investigation is not an

affirmative act which promoted the commission of the murder. See Druery, 225 S.W.3d at 500

(witness who assists in disposal of murder weapon not an accomplice because not an affirmative
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act promoting commission of offense); see also McCallum v. State, 311 S.W.3d 9, 14 (Tex. App.—

San Antonio 2010, no pet.) (witness who disposed of evidence after the crime not an accomplice);

see also Roys v. State, 416 S.W.3d 229, 234 (Tex. App.—Amarillo 2013, pet ref’d) (same).

       Accordingly, because the evidence clearly established that Walker was not an accomplice,

the trial court did not err in denying the accomplice-witness instruction in the jury charge.

                            LESSER INCLUDED OFFENSE INSTRUCTION

       Hunt contends the trial court erred when it denied his request to instruct the jury on a lesser

included offense of murder. Hunt was charged with capital murder for committing murder while

in the course of committing or attempting to commit a robbery. See TEX. PENAL CODE ANN.

§ 19.03(a)(2) (West Supp. 2013). Hunt contends that he was entitled to the instruction because

there is some evidence that someone other than Hunt took Dexter’s money.

       To determine whether a defendant is entitled to a lesser included offense instruction, we

employ a two-step analysis. Wortham v. State, 412 S.W.3d 552, 554 (Tex. Crim. App. 2013). The

first step is to determine whether “the proof necessary to establish the charged offense also includes

the lesser offense.” Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). If it does, the

second step requires the court to consider “whether the evidence shows that if the [defendant] is

guilty, he is guilty only of the lesser offense.” Id. at 382. There is no dispute that the proof

necessary to establish capital murder also includes the proof necessary to establish murder.

Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004); Smith v. State, 297 S.W.3d 260,

275 (Tex. Crim. App. 2009). Thus, the dispute in this case centers on the second step.

       “A defendant is entitled to an instruction on a lesser-included offense if some evidence

from any source raises a fact issue on whether he is guilty of only the [lesser-included offense]

. . . .” Cavazos, 382 S.W.3d at 383. The amount of evidence required to raise a fact issue is

anything “more than a scintilla.” Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994);
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Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). In evaluating this evidence, we do

not consider “whether it is disputed or [whether it] conflicts with other evidence,” as that falls

within the province of the fact-finder. Dale v. State, 90 S.W.3d 826, 832 (Tex. App.—San Antonio

2002, pet. ref’d). Rather, we consider whether the evidence presented “refutes or negates other

evidence establishing the greater offense or . . . [whether it] is subject to different interpretations.”

Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011) (citing Robertson v. State, 871 S.W.2d

701, 706 (Tex. Crim. App. 1993)). The evidence, however, “must be sufficient to establish the

lesser-included offense as a ‘valid, rational alternative’ to the charged offense.” Cavazos, 382

S.W.3d at 385 (quoting Hall, 225 S.W.3d at 536). As the Court of Criminal Appeals in Cavazos

explained:

        If the evidence raised at trial casts doubt on the greater offense, a lesser-included
        offense instruction allows the jury to vote for a rational alternative. While it is true
        that the evidence may be weak or contradicted, the evidence must still be directly
        germane to the lesser-included offense and must rise to a level that a rational jury
        could find that if [the defendant] is guilty, he is guilty only of the lesser-included
        offense. Meeting this threshold requires more than mere speculation—it requires
        affirmative evidence that both raises the lesser-included offense and rebuts or
        negates an element of the greater offense.

Id. (citations omitted).

        Hunt argues that the only evidence that Hunt committed a robbery is circumstantial

evidence establishing that Dexter had $19.62 in cash when he left the convenience store, but only

had sixty-two cents in his pocket when his body was discovered less than ten minutes later. Hunt

argues that it is equally plausible that Solis, the man who discovered Dexter’s body, took the

money before Officer Phelan arrived on the scene. Thus, Hunt argues that he was entitled to a jury

instruction on murder because the evidence of Solis’s mere presence at the crime scene, albeit a

small amount of evidence, raises the possibility that Hunt did not commit a robbery, but rather that

Solis committed a theft. Accordingly, we must determine whether Hunt’s theory is a “valid,


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rational alternative” that is supported by “more than a scintilla of evidence,” as opposed to “mere

speculation.” Cavazos, 382 S.W.3d at 385.

          In making this determination, an appellate court “must examine the entire record instead

of plucking certain evidence from the record and examining it in a vacuum.” Enriquez v. State, 21

S.W.3d 277, 278 (Tex. Crim. App. 2000). A review of the entire record reveals no evidence to

establish Hunt’s theory as a valid and rational alternative. Solis testified that upon discovering the

bloody crime scene, he placed the taxi in park, immediately called 911, and began searching

neighboring yards with his flashlight. Officer Phelan arrived several minutes later and discovered

Solis standing in the middle of the street, understandably upset by the incident. Hunt’s theory that

Solis took Dexter’s money but also called 911 and remained on the scene to assist police is simply

not rational and is at most, purely speculative. See Contreras v. State, 915 S.W.2d 510, 521 (Tex.

App.—El Paso 1995, writ ref’d) (defendant’s claim that someone else took money was speculative

and not sufficient to raise a fact issue regarding defendant’s commission of robbery aggravating

capital murder). Accordingly, the trial court did not err in denying a lesser-included offense

instruction of murder.

                               COURT COSTS AND ATTORNEY’S FEES

          In its final judgment, the trial court assessed $371.50 in court costs in addition to an

unspecified amount of attorney’s fees. Hunt contends that the evidence is insufficient to support

the trial court’s assessment of court costs and attorney’s fees. The State concedes that Hunt’s

status as an indigent defendant precludes the imposition of attorney’s fees. The State requests that

we affirm or modify the judgment in accordance with the bill of costs contained in a supplemental

record.

          A trial court may not assess the costs of legal services provided, including the cost of an

appointed attorney, unless the trial court determines that the defendant has financial resources that
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enable him to offset the costs. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2013);

Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App 2010). “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.” TEX. CODE

CRIM. PROC. ANN. art. 26.04(p) (West 2009). The trial court determined that Hunt was indigent

when it appointed an attorney to represent him, and the record contains no evidence of a material

change in Hunt’s financial circumstances. Accordingly, we hold that the trial court erred in

assessing attorney’s fees and modify the trial court’s judgment to delete the assessment of

attorney’s fees. See Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013); Fulmer v.

State, 401 S.W.3d 305, 318–19 (Tex. App.—San Antonio 2013, pet. ref’d).

        A trial court is authorized by statute to assess miscellaneous court costs and fees unrelated

to the providing of legal services, regardless of a defendant’s indigent status. Owen v. State, 352

S.W.3d 542, 546 (Tex. App.—Amarillo 2011, no pet.); Wallace v .State, No. 04-13-00202-CR,

2013 WL 5653247, at *1 (Tex. App.—San Antonio Oct. 16, 2013, no pet.) (mem. op., not

designated for publication) (citing In re Daniel, 396 S.W.3d 545, 549–50 (Tex. Crim. App. 2013)).

We will affirm a trial court’s judgment assessing court costs if the basis for the costs is supported

by the record. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). Although not

required to support an assessment of costs, the record may be supplemented to include a certified

bill of costs. Id. at 392.

        Included in the appellate record is a supplemental clerk’s record containing a certified bill

of cost prepared by the Bexar County District Clerk. Aside from the fees assessed for an appointed

attorney, the bill of cost reflects miscellaneous administrative fees and costs totaling $334. The

record contains no evidence to support an assessment in excess of $334. Accordingly, we reform

the trial court’s judgment to assess costs in the amount of $334. See Dews v. State, No. 04-12-
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00240-CR, 2013 WL 3486821, at *2 (Tex. App.—San Antonio Jul. 10, 2013, no pet.) (mem. op.,

not designated for publication).

                                           CONCLUSION

       In conclusion, the admission of Dexter’s statement to Officer Phelan did not violate the

Confrontation Clause and even if it were inadmissible hearsay under the rules of evidence, its

admission was harmless. The trial court did not err by not providing an accomplice witness

instruction and Hunt was not entitled to a jury instruction on the lesser-included offense of murder.

Lastly, we modify the judgment of the trial court to delete the assessment of attorney’s fees and to

reduce the court costs assessment to $334. The trial court’s judgment is affirmed as modified.


                                                   Catherine Stone, Chief Justice

DO NOT PUBLISH




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