NO. 07-10-00126-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 19, 2010
ARELL COLE, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE COUNTY COURT AT LAW OF McLENNAN COUNTY;
NO. 20093647CR1; HONORABLE MIKE FREEMAN, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Arell Cole, Jr. appeals his conviction for driving while intoxicated and raises two
issues. He first claims that 1) the trial court erred in ordering him to pay court-appointed
attorney’s fees when the record contained no evidence that he was capable of doing so,
and then posits that 2) it abused its discretion in admitting hearsay testimony from two
paramedics regarding conversations they overheard between him and his wife. We
modify the judgment and affirm it as modified.
Background
Appellant and his wife were involved in a one-car accident on July 11, 2009, at
around 2:45 a.m. Emergency personnel who arrived at the scene believed that
appellant was the driver of the vehicle based on statements he made, the location in
which they found him, the position of the driver’s seat, and other circumstantial
evidence. Two paramedics also overheard separate conversations between appellant
and his wife wherein they discussed who should take responsibility for being the driver.
Appellant was found to have a .20 blood alcohol concentration at the time of the
accident, and the only contested issue at trial was whether he had been driving the
vehicle.
Issue 1 – Payment of Court-Appointed Attorney’s Fees
In the judgment, the trial court ordered appellant to pay “all costs in this cause.”
Also appearing on the same document is a stamped notation after the trial judge’s
signature stating: “It is ORDERED that all court appointed attorney fees in this case
shall be taxed as costs of court pursuant to Art. 26.05(f), Tx. Code of Criminal
Procedure.”1 When this notation was placed on the judgment and by whom is unknown
since neither a date nor initials appear next to it. Nevertheless, appellant contends that
the evidence is legally insufficient to support the directive. We sustain the issue.
If a court determines that a defendant has the financial resources to offset, in
whole or part, the costs of legal services provided him, the trial court shall order him to
pay for those services to the extent that he can. TEX. CODE CRIM. PROC. ANN. art.
26.05(g) (Vernon Supp. 2009); see Sauceda v. State, 309 S.W.3d 767, 770 (Tex. App.
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The record does not indicate what portion of the court costs were represented by attorney’s fees.
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–Amarillo 2010, no pet.) (addressing the matter). Implicit therein is the need for 1) the
trial court to find that appellant is capable of paying for some or all of that expense and
2) evidence supporting that determination.
Here, the trial court did not specify a particular amount of fees that should be
repaid. Nor did it find that appellant had sufficient financial resources to pay any of the
expenses at issue. Instead, it twice (at trial and on appeal) appointed legal counsel to
represent appellant. It is elemental that before such appointments could have been
made, appellant had to have been deemed indigent, that is, without sufficient economic
or financial resources to pay for his own attorney. Trammell v. State, 287 S.W.3d 336,
343 (Tex. App.–Fort Worth 2009, no pet.) (explaining when a defendant is entitled to
appointed counsel). More importantly, appellant being found indigent for purposes of
gaining appointed counsel hardly establishes that he had sufficient financial resources
to offset the expenses incurred in providing him an attorney. The contrary seems rather
logical, as the State seemed to recognize in its brief. So too is it true that once a
defendant is found indigent, he is presumed to remain so for the remainder of the
proceedings, unless there is some proof that his financial resources materially changed.
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Sauceda v. State, 309
S.W.3d at 770. And, we have no such showing before us.
As for the State’s request to have the cause abated and remanded, it is rather
settled that when the evidence is held to be legally insufficient to support a finding, the
cause cannot be simply abated and remanded for additional factual development.
Mayer v. State, 309 S.W.3d at 557. Thus, the State does not get another opportunity to
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bite at the attorney’s fee apple, especially when we are cited to nothing of record
suggesting that it was precluded from taking a first bite.
Issue 2 – Hearsay Testimony
Next, appellant complains that the trial court erred in admitting the testimony of
two paramedics who testified about overhearing appellant and his wife discuss who
should admit to driving the vehicle at the time of the accident. Appellant objected to the
testimony on the grounds of hearsay. We overrule the issue.
Hearsay is a statement, other than one made by the declarant while testifying at
trial, offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d). The
statements at bar consisted of both paramedics testifying that they overheard appellant
state that he was driving the vehicle after his wife suggested that all should be told that
she was driving. While appellant’s utterance could be considered hearsay, it can also
be reasonably interpreted as a statement against interest. As such, it can be admitted
as an exception to the hearsay rule. See id. 803(24) (stating that an exception to the
hearsay rule is one which at the time of its making was so far contrary to the declarant’s
interest or so far tended to subject him to criminal liability that a reasonable person
would not have made the statement unless believing it to be true).
As for reiteration of the wife’s portion of the conversation, it could be reasonably
interpreted as providing the context for appellant’s admission. As such, it was not being
offered to prove the substance of what was being asserted, i.e. that the wife drove the
car. See Stallings v. State, 476 S.W.2d 679, 681 (Tex. Crim. App. 1972) (stating that
testimony from the complaining witness as to a statement made by the defendant’s wife
immediately prior to the crime to the effect that the defendant was wanting to cut her
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throat was not hearsay because it was made in the defendant’s presence and not
offered to prove that appellant had actually assaulted his wife). Therefore, we cannot
say the trial court abused its discretion in admitting the testimony at issue.
Accordingly, we modify the judgment to delete that portion requiring appellant to
pay attorney’s fees and affirm the remainder.
Brian Quinn
Chief Justice
Do not publish.
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