COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00190-CR
JUAN TOVAR APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12544
----------
MEMORANDUM OPINION 1
----------
After a bench trial, the trial court convicted Appellant Juan Tovar of sexual
assault of a child and sentenced him to fifteen years’ confinement. Appellant
brings two points on appeal, challenging the sufficiency of the evidence to
support his conviction and to support the imposition of attorney’s fees and other
costs. Because we hold that the evidence is sufficient to support the conviction,
1
See Tex. R. App. P. 47.4.
we affirm the trial court’s judgment as to the conviction and sentence. But
because the trial court erred by ordering Appellant, who is indigent, to pay
attorney’s fees and other costs, we reverse the trial court’s judgment as to costs,
and we likewise reverse the trial court’s order to withdraw funds. We remand this
case to the trial court for the sole purpose of modifying both the judgment and the
order to withdraw funds to reflect the proper amount of costs that Appellant
should be ordered to repay despite his indigence.
Brief Facts
Complainant was twenty-five years old at the time of Appellant’s trial and
had two children, one of whom was born when Complainant was sixteen years
old. Complainant used methamphetamine as a teenager and young adult, and
she was imprisoned and sent to a substance abuse felony punishment facility
(SAFPF) for methamphetamine possession. At the time of Appellant’s trial, she
resided in a therapeutic transition center as a condition of her release from the
SAFPF. The same trial court that convicted Appellant had previously placed
Complainant on community supervision for possession of a controlled substance.
Complainant also had contact with Child Protective Services (CPS). CPS
investigators discovered that Appellant was the father of her elder son and
reported a sexual assault to law enforcement.
Appellant was fifty-three years old at the time of his trial. He had been a
neighbor and friend of Complainant’s family, and his children had played with
Complainant and her siblings. When Complainant was fifteen years old,
2
Appellant offered to help her parents by picking her up from the behavioral
transition center at the local school, commonly known as “BTC.” On the way
home from BTC, Appellant often parked his van in a secluded area, where he
gave Complainant methamphetamine and fondled her breasts. Complainant
testified that on at least two occasions, Appellant gave her methamphetamine in
exchange for sexual intercourse. She discovered that she was pregnant on her
sixteenth birthday.
Appellant testified that one day after he had been to a barbeque at the
home of Complainant’s parents, Complainant and her brother gave him a blue pill
and two white pills. Appellant explained at trial that he had no memory of what
happened for the remainder of that day. The next day, Appellant’s friends teased
him about having had sex with Complainant after he took the pills.
Complainant testified about giving Appellant the pills. She confirmed that
she and her brother had given Appellant a blue Viagra pill as a joke when he
complained of tooth pain. She also explained that the pill incident had occurred
after Appellant had sex with her and while she was pregnant. Complainant
denied that she ever gave Appellant pills that made him pass out or that would
allow her to have sex with him without his knowledge.
Investigator Robert Young investigated the CPS report regarding the
paternity of Complainant’s elder child. Young obtained DNA samples from
Complainant, her son, and Appellant. The University of North Texas Health
3
Science Center performed DNA analyses on the samples. The testing proved
that Appellant was the father of Complainant’s elder child.
Sufficient Evidence of Guilt
In his first point, Appellant challenges the sufficiency of the evidence 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. 2
Appellant contends that the requisite mental state—intentionally or knowingly 3—
presumes that his actions were voluntary. He argues that “voluntariness”
“necessarily requires that the State prove that [he] intended to do the act
complained of, and it does not include the product of unconsciousness, hypnosis
or other non-volitional causes that are not voluntary.” 4 Appellant argues that his
actions were not voluntary and therefore not intentionally or knowingly done.
Consequently, he argues, the evidence is insufficient to support the verdict of
guilt.
2
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).
3
See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West 2011).
4
See Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003).
4
The trial judge, as the trier of fact, is the sole judge of the credibility of the
witnesses and the inferences and conclusions to be drawn from the credible
evidence. 5 Although there was evidence of Appellant’s involuntary intoxication,
there was also evidence that he engaged in sexual intercourse on two occasions
and that Complainant was already pregnant when the involuntary intoxication
allegedly happened. As Appellant concedes, no corroboration was necessary
because Complainant was a minor at the time of the offense,6 and, as the State
points out, to the extent that corroboration could ever be needed, the DNA test
results provide it. We therefore hold that the evidence was sufficient to support
the trial court’s judgment of guilt. We overrule Appellant’s first point.
Attorney’s Fees and Other Costs
In his second point, Appellant challenges the sufficiency of the evidence
supporting the trial court’s order that he pay attorney’s fees and other costs.
Appellant argues that the trial court found him indigent and appointed counsel to
represent him. 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.” 7
5
Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011).
6
Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (West Supp. 2014).
7
Id. art. 26.04(p); Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App.
2013).
5
The trial court found that Appellant was indigent. The record does not
reflect that Appellant’s indigent status changed before the trial court ordered him
to pay attorney’s fees and other costs. In the best tradition of seeking justice
rather than self-aggrandizement, the State candidly agrees with Appellant’s
statement of the facts and the applicable law regarding attorney’s fees. We
therefore sustain Appellant’s second point as to the order to pay attorney’s fees.
When the record does not contain a factual basis to support imposition of
attorney’s fees, the proper remedy is to delete the order to pay attorney’s fees. 8
However, the bill of costs and judgment provide one amount for total costs, and
the order to withdraw funds provides another, lesser amount. The difference
between the cost amount in the judgment and the cost amount in the order to
withdraw funds is not the amount of attorney’s fees given in the bill of costs. That
is, from the record before us, we cannot determine the amount of attorney’s fees
assessed against Appellant in the judgment and order to withdraw funds. We are
therefore unable to modify the judgment and order to withdraw funds by deleting
the attorney’s fee assessment. We also note that Appellant has in this court
generally challenged the costs assessed against him by the trial court but has not
challenged a specific cost listed in the bill of costs other than attorney’s fees. We
decline to review the correctness of each court cost charged to Appellant when
8
Cates, 402 S.W.3d at 251–52.
6
he has not done so. 9 But as Appellant points out, article 103.008 of the code of
criminal procedure allows him to seek such relief in the trial court up to a year
after final disposition of the case. 10
Conclusion
Accordingly, we affirm in part and reverse and remand in part. Having
found the evidence sufficient to support Appellant’s conviction and sentence, we
affirm the trial court’s judgment as to Appellant’s conviction and sentence. But
having found the evidence insufficient as to the award of attorney’s fees against
Appellant, we reverse the trial court’s judgment and the order to withdraw funds
solely as to the attorney’s fees and other costs ordered. We remand this case
only so that the trial court may delete the attorney’s fee assessment from the
judgment and order to withdraw and may also, subject to Appellant’s filing an
article 103.008 motion in the trial court, correct any errors in the remaining costs,
given Appellant’s indigent status. 11
9
See Crisp v. State, 413 S.W.3d 224, 227 (Tex. App.—Fort Worth 2013,
pet. ref’d).
10
See id. at 227 n.2; Tex. Code Crim. Proc. Ann. art. 103.008 (West 2006).
11
See Tex. Code Crim. Proc. Ann. art. 103.008; Crisp, 413 S.W.3d at 227
& n.2.
7
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 14, 2015
8