## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00084

- CR

EMILE FITZGERALD PORCHE , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 50664

- A

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
The trial court convicted Emile Fitzgerald Porche of family violence assault of Danielle
Du pree, with one pri or conviction for family v iolence assault, a third

- degree felony

. 1 After the
trial court found a punishment enhancement allegation “ true, ” it sentenced Porche to ten years’ imprisonment. In this appeal, Porche asserts (1) that insufficie nt evidence supports the verdict
that he comm itted family violence assault because the parties were engaged in mutual combat and (2) that the trial court err oneously assessed him attorney fees . Because we find that Porche’s
claimed defense of mutual combat is meritl ess , we will affirm the t ria l court’s j udgment. Nevertheless, because the record shows that Porche is indigent, we will modify the judgment and

st rike the assessment of attorney fees

. I. Porche’s Claimed Mutual Combat Defense is Without Merit
A. Evidence at T rial On February 13, 2020, Lo ngview Poli ce Department (LPD) Officers Michael Hunt and
Jimmie Redmon responded to a family violence call at the home of Porche and Dupree. 2 Hunt
testified that there were signs of a struggle in the room, blood on a d oor , and a broken window

. When the offic ers arr ived, Dupree had a busted lip and a cut and bruises on her arm , and Porche had no visible injuries. Porche told the officers that Dupree jumped h im firs t and started punching h im , th at he pushed her off of him , that Dupree came at hi m aggre ssivel y, a nd th at he

1 See T EX

. P ENAL C ODE A NN

. § 22.01 (b)(2) (A) (Supp.)

.
2 The State also i nt rod uced recordings taken by the bo dy cameras of the responding officers and photographs ta ken by one o f the officers.3

pu shed her again

. He also claimed that she hit him hard in both eyes, although the recordings did not reveal any visible injuries to either eye. However, Dupree told the officers tha t they argued, then Porc he pushed her in her throat , gr a bbed h er cell phone, hit her in the face , and then she hit him

. When she tried to retrieve her cell phone and put on some clothes, Porche pushed her into a window , the glass bro ke and cut her arm, and then he hit her again

. Based on Dupree’s statemen ts a nd injuri es, Hunt found that
Porche had pushed and hit Dupree.
Felicia Robertson testified that Porche is Dupree’s boyfriend and that they have a son together

. She call ed 9

- 1

- 1 that day because Dupree called her and she he ard Dupree screaming

“ [ s ] t op h i tting me , get off me .” Robertson testified that she could also hear “licks being passed .”
She then went to the house , and when she arrived , Dupree was bleeding d own her a rm , had a busted lip, and was unclothed.
At trial, Dupree testified that Porc he p u nched he r in the face and pus hed her through a
window and that the glass broke and went through her arm

. Afterward , she went to the hos pital
and got staples for the c ut. She also testified that Porche did not try to help her after she was cut by the gla s s. Dupre e maintained that she struck Porche with her fist because she “ had [ her ] son in [ h er ] hand ” and was trying to protect him. She also testified that she was choked and passed

out. Dup ree maintained that P orche hit her first. 3

3 The State also i nt roduced evide nce of a prior conviction for family violence assault. Taylo r Bogue, an investigator for the Gregg County C r iminal D istrict A ttorney’s O ffice, testified that he had determi ned that Porche was born on A p ril 1 8, 1969. Th e State introduce d a ce rtified j udgment that showed that an Emile Fitzgerald Porche was convi cted of family v iolence assault on September 2 9, 201 0. It also showed that the defendant in that case was born on April 18, 1969, in Baton Rouge

. Por c he acknowled g ed that he grew u p in Louisi an a. Porche d oes not challe nge4

Porch e tes tified o n his own behalf. He maintained that he helped Dupree remove her arm
from the broken window and that it had been broken previously

. He testified that the alt ercation began wh en he asked Dupree about text messages from guys on her cell phone and Dupree go t upset an d aggressive. He maintained that he called 9

- 1

- 1 and b arricaded himself in a room because he was afraid of her since she had beat en him on prio r occasions. He clai m ed that she previously bruised and blacke ned his e yes and that sh e kicked him in t he head. Porche maintained that Dupr ee was aggressive and violent and that she started the altercation. He
denied choking her or punching her in the throat. He also maintained that he called 9

- 1

- 1 several
times that mor ning, including when Dup ree jump e d on him , an d that he pushed her off of him
but did not hit her. Porche also denied that he pushed her toward the window.
B. Analysis “Legal sufficiency of the evidence is measured by the elements of the offense as defin ed by a hyp othetically correct j ury cha rge.” Williamson v. State , 589 S.W.3d 292, 29 8 (Tex. App.

— Texarkana 2019 , pet. ref’d) ( citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accur ately sets out the law , is
auth o riz e d b y the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability , and adequately describes the particular
offense for which the defendant was tr ied.’” Id

. (quoting M alik , 953 S.W

. 2d at 240 ). Under the amended indictment and applicable statute in this case, the State was required
to show , beyond a reasonable doubt , th at Porche (1 ) intentionally, knowingly, or recklessly

the sufficiency of the evidence of the prior co nviction for family violence a ssault a s alleged in th e State’s amended indictment

.5

(2) caused bodily injury ( 3) to Dupree , (4) with whom he w as i n a famil y 4 or a dating relationship , 5 and (5) that Porc he was previously convicted of family violence assault. See T EX

. P ENAL C ODE A NN

. § 22.01(a)(1), (b) (2)( A) (Supp.)

. In order to challenge the sufficiency of
evidence to suppor t the trial court’s ve r d ict that he com mitted family violence assault, Porche is required to provide an analysis that demonstrates that no rational fact

- finder co uld find at le as t

o ne of the essential elements of the alleged family v iolence assau lt, i.e., elements (1) through (4 )
above , 6 be yond a reaso nable doubt. Williamson , 589 S.W.3d at 297 ( “In eva luating legal sufficiency, we review all the evidence in the l ight most favo rable to the trial court’s judgment to determine whether any rational jury could have fou nd the essentia l eleme nts o f the offens e beyond a reasonable doubt.” ). Although Porche pu rports to complain that the evidence is insufficient to suppor t the trial

co urt’s verdict that he committed family violence assault, he provide s no analysi s that
demonstrates that t he evid e n ce su pport ing any of the element s of family violence assaul t is
insufficient. Rather, h e argues that , because of the difference betwe en his and Dupree’s versions of the events, Dupree’s acknowledgment that she struck Porche during the altercatio n , and th e evidenc e that there was a history of violen ce between the parties , 7 the evidence “suggests” that
the y “engaged in mutual combat .” To the extent that Porche’s argument on a ppeal can be

4 A “ ‘ [ f ] amily ’ includes

. . . individuals who a re th e parents of th e same child, wit h ou t regar d to marriage. ” T EX

. F A M

. C ODE A NN

. § 71.003.

5 See T EX

. F AM

. C ODE A NN

. § 71. 0021 (a)(1)

.
6 Element ( 5) , a pr ior conviction for family violence assault , raises the degree of the offense from a Class A misdeme a nor t o a third

- deg ree felony. T EX

. P E NA L C ODE A N N

. § 22.01 (b )(2)(A).

7 State’s Exhibit 8 is an offense report of the LPD that reflects that , on Janua ry 16, 2000, Porche complai ned to police that Dupree had kicked him in the head and scratched his face

.6

construed as asserting consent as a defense to his assaultive conduc t under Section 22. 06 of the Texas Penal Code, see T EX

. P ENAL C ODE A NN

. § 22. 06, Porche did not asser t this def ense in the
trial court. Rather, Porche denied any assaultive conduct on his part, except that he pushed Dupree when she jumped on him. Furth er , he argued to the trial court that his only defense was that Dupree wa s the aggressor, that she lied , and that he only pushed her in self

- defense.
Because Porche did not assert a defense under Section 22. 06 in the trial court, any complaint
related to i t h as not been preserved on appeal. See T EX

. R. A PP

. P. 33.1( a) ; Streiter v. State , No.
04

- 1 7

- 00389

- CR, 2018 WL 2222198, at *2 (Tex. App.

— San Antonio May 16, 2018, pet. ref’d ) (mem. op., not designated for publication)

. Further, “ [t] he trial court, a s the t rier of facts , is the sole judge of the credibility of the witnesses and weigh t to be given their testimony, and may accept or reject all or any part of the witnesses ’ testimony.” Casey v. State , 519 S.W.2d 859, 861 (Tex. Crim. App. 1975)

. A s a re sult, w e find this issue to be without merit. We overrule thi s issue

. II. T he Judgment Must Be Modifie d Porche also complai ns that , because he is indigent, the trial court erroneously assessed
him attorney fees in it s judg m e nt

. We a gree. Article 26.05(g) o f the Tex as Cod e of Criminal Procedure authorizes a trial court to order
the reimbursement of court

- a ppointed attor ney fee s only “ [ i ] f the judge determines that a
defendant has financial res ou rces that enable the de fendan t t o offset in part or in whole the c osts
of the l egal services provided

. . . including any ex penses and costs.” T EX

. C ODE C RIM

. P ROC

. A NN

. art . 26.05(g) ( Supp.). “[T]he defendant ’ s financial resources and ability to pay are ex plicit7

critical element s i n the trial court ’ s determination o f the pro priety of ordering reimbursement of costs and fees” of legal services provid ed. Armstrong v. State , 340 S.W.3d 7 59, 765

– 66 (Tex. Crim. App. 2011) (alteration in original) (quoting May er v. State , 309 S.W.3d 5 52, 5 56 ( Tex.
Cri m. App. 2010)).
Due t o his ind igency , Porche received a court

- a ppointed attorney at his arraign ment and

w as represented by a court

- appointe d at torney through the trial of this case

. Porche was also appointed counse l for this appeal. Bec ause t he trial co urt found Porch e indig en t, “ [] h e [ wa ] s presumed to remain indig ent absent proof of a material change in h [ is ] circumstances. ” Walker
v. State , 557 S.W.3d 678, 689 (Tex. App.

— Texarkana 2018, pet. ref ’ d ) ; s ee T EX

. C ODE C RIM

. P ROC

. A NN . art

. 26. 0 4 ( p ) (Supp.) , art

. 26.05(g)

. Even s o, t he judgme nt and the certified bill of

costs reflect that Porche was asses sed $1,7 63.75 in attorney fees. The record lac ks any indication that his financial status or ability to pay changed at any p oint in the case. See Cates v.
State , 402 S. W.3d 25 0, 252 (T ex. Cr im. App. 2013)

. As a result , the assessment of attorney fees

wa s error. See Martin v. State , 405 S.W.3d 9 44 , 94 7 (T ex. App.

— Texarkana 2013, no pet.). We have the authority “ t o reform judg ments and affirm a s modified in

. . . cases involvi ng non
re versib le error.” Mitche ll v. State , 653 S.W.3d 295, 297 (Tex. App.

— Texarkana 2022, no pet. )

. W e sustain this i ssue an d modify the judgment and the clerk’s certified bill of costs by deleting t he assessment of $ 1 ,763.75 for attorney fees

.8

III. Dispo si tion
We modif

y the trial court ’s judgment and the clerk’s certified bill of costs by deleting the

asses sm ent of $1,763.7 5 for a ttorney fees. As modified, we affirm the trial court’s judgme nt.

C harles van Cleef J u stice
Date Submitted: June 2 8 , 20 23 Date D ecided : June 29 , 202 3
Do N o t Publish