## NO. 12

- 20

- 00020

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JEREMY ALLEN MATHIS , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEA L FROM THE 349TH

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMO RANDUM OPINION Jeremy Allen Mathis app eals the revocation of his community supervision. In two issues, Appellant contends the evidence is insufficient to support his revocation and that the trial court improperly authorized attorney’s fees to be added at a later date. We modify the judgment and
affirm as modified.

B ACKGROUND In 2015, Appellant was charged by indictment wi th fraudulent use or possession of identifying information and abandoning or endangering a child. Pursuant to a plea agreement, Appellant pleaded “gu ilty” to both charges and was placed on deferred adjudication community supervision for four years.
In December 2018, the State filed a motion to proceed with adju d ication of guilt and sentencing alleging Appellant violated certain terms of his community supervision. Specific ally, the State maintained that Appell ant committed three new offenses, which were alleged in a new indictment. Appellant was charged with two counts of assault family violence with a previous conviction as well as injury to a child. The State’s motion f urther alleged Appellant failed to pay the costs of urinalysis drug tests , supervision fees, and his fine.2 Appellant pleaded “not guilty” to the charges alleged in the new indictment, and the matter proceeded to a jury trial. Appel lant also pleaded “not true” to the motion to proceed with adjudication. The new offenses and the motion to adjudicate were heard simultaneously by the jury and tri al court. At the conclusion of the trial, the jury found Appellant “not guilty” of the
off enses as alleged in th e indictment. However, the trial court found that Appellant had committed them by a preponderance of the evidence, found the State’s allegatio ns to be “true,” revoked Appellant’s community supervision , and sentenced him to two years confinement. This

app eal followed.

R EVOCATION OF C OMMUNITY S UPERVISION In his first issue, Appellant contends the evidence is insufficient to support the trial

co urt’s revocation of his community supervision. Specifically, Appellant urges the evidence is insufficient to sup port the trial court’s finding that he committed the criminal acts alleged. Standard of Review and Applicable Law
T he determination to proceed with an adjudication of guilt after a defendant is placed on deferred adjudication community supervision is revie wable in the same manner as a revocation hearing. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42 A

. 108(b) (West 201 8 ). In revocation cases, the
state has the burden to establish by a preponderance of the evidence that the terms and condit ions of community supervision have been violated. Cardona v. State , 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The preponderance of the evidence standard is met when the greater weight of the credible evidence before the trial court supports a reasonable belief that a condition of community supervision has been violated. Rickels v. State , 202 S.W.3d 759, 764 (Tex. Crim. App. 2006). In a hearing on a motion to revoke com munity supervision, the trial court is the sole trier of fact, and the judge of the cred ibility of the witnesses and the weight to be given their testimony. Taylor v. State , 604 S.W.2d 175, 179 (Tex. Crim. App. [Panel Op.] 1980).
When the state has met it s burden of proof and no procedural obstacle is raised, the
decision whether to revoke community supe rvision is within the di scretion of the trial court. Flournoy v. State , 589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979). Thus , our review
of the t rial court’ s order revoking community supervision is limited to determining whether the
trial court abu sed its discretion. C addell v. State , 605 S.W.2d 275, 277 (Tex. Crim. App. [Panel Op.] 1980). If there is some evidence to support the finding of even a single violation, the3 revocation order must be upheld. See Hart v. State , 264 S.W.3d 364, 367 (Tex. App.

– Eastland
2 008, pet. ref ’ d); C ochran v. State , 78 S.W.3d 20, 28 (Tex. App.

– Tyler 2002, no pet.) (citing
Moore v. State , 605 S.W.2d 924, 926 (Tex. Cri m. App. [Panel Op.] 1980)). A person commits the offense of assault, as applicable in this case, if he intentionally, knowingly, or recklessly causes bodily injury to another. T EX

. P ENAL C ODE A NN . § 22.01(a)(1) (West 2020). A person commits the offense o f injury to a child if he in tentiona lly, knowingly, recklessly, or with criminal negligence, by act causes to a child bodily injury. Id

. § 22.04(a)( 3) (West 2019). “Bodily injury” is defined as “physical pain, illness, or any impairment of physical
condi tion.” Id

. § 1.07(8) (West Supp. 20 20) Analysis In its motion to adjudicate, the State alleged Appellant violated the following terms of his

commun ity supervision: (1) committing injury to a child on November 28, 2018 ; (2) committing assault family viole nce against Rhonda Mathis on Novembe r 28, 2018 , with a previous conviction; (3) committing assault family violence against Alexis Mars on November 28 , 2018 , with a previous conviction; (4) failing to pay for urinalysis drug tests; (5) failing to make his

m onthly supervision payment o ver seve ral months; and (6) failing to pay his previous fine per the collections agreement. Appellant claims the evidenc e does not support the allegations that he
committed the crim es alleged.
Shakia Price testified that she s aw Appellant fighting with a woman i n a van in the
Palestine Walmart parking lot on November 28, 2018

. His hands were around the woman’s
neck. A fe male child was attempting to stop Appellant. Price yelled at Appellant , “Don’t do
that. Get off of her.” She then called 911. Accord ing to P rice, it appeared Appellant was choking the woman because of the way he was holding the woman and the way the wom an was trying to get him to let go. Price further testified that the woman’s face was red and she appeared to be gasping for air. Appellant e ventually stopped and left the scene on an electric scooter. Chrystian Calhoun , who was ten years old at the t ime of trial, testified that his mother had
asked him to go into Walmart to get something on November 28. When he exited the store , he heard p eople arguing, and then he “saw [Appellant] punch the girl in the stomach. She flew out of the car.” C alhoun ran to tell his mother who told him to stay in the car. Tanesha Strain, Calhoun’s mother, testified that wh en Calhoun returned from inside the

store , he told her that a man hit a little girl. Strain made Calhoun get in the ca r, and then went to4 help. She recognized the people involved. According to Strain, Rhonda was screaming, “Help, help, get your hands of f of me.” Appellant had Rhonda behi nd the back of her head. Appellant
was in the driver’s seat of a car and Rhonda was in the passenger’s seat. Str ain approached Appellant and said, “Hey, if you want to hit somebody, hit me.” Strain stated that she was angry because the little girl was ou t of the car and holding her stomach. She then saw “the mom” exit
Walmart and Stra in told her what happened. By that time, the police arrived, and Strain gave a
statement. Zachary Smith, an officer with Palestine Poli ce Department, testified that he res ponded to

a disturbance at the Walmart parking lot on November 28. During his inve stigation, he
determined there were two alleged assault victims. Alexis claimed she was punched and fell out of the vehicle, approximate ly eighteen inches from the ground. Rhonda alleged that Appellant grabbed her behind the neck leaving scratch marks. Photographs of their injuries were admitted
into evidence. Appellant was not on scene, but he was found nearby between a gas station and a Wendy’s restaurant

. Rhonda Mat his testified that she is Appellant’s mother . According to Rhonda, in
November 201 8, Appellant was dating a woma n named Misty and Alexis was her daughter. On the day of the incident, the family had gone to Walmart . Mi sty went into the store while

everyo ne else stayed in the van. Rhonda t estified that the incident between Appellant, Alexis,
and herself occurred as follows :

A. Well, we were just sitting there, and she asked for her brush. And I told her it was in the

c onsole, to get it. She took

-- Jerem y took the brush and threw it on top of the c ar. Q. For some reason he didn ’ t want her to have the brush? A. He s aid that she was going to hit her brother with it. Q. Did [s he ] threaten to hit her brother with it or anyt hing like that? A. No

-- I don ’ t rem ember, really. Q. Well, what happened after h e put the brush up on top of the roof? A. She went out to get it, an d he tapped on her leg, like that. (Demonstrating) Q. So he just tapped her? A. Uh

- huh, like that. (Demonst rating) Q. He didn ’ t hit her? A. No, he tapped her.

. . . Q. So then what happened after he tapped her on her leg? A. She got back in the car and g ot in the backseat and was texting her mama from right there, and they

-- they were having mouths, you know . And he just got tired and opened t he front door and then came

-- well, I w as sitting right behind him. And he grabbed me like that trying to get to her. (Demonstrating) Q. Okay. You didn ’ t put yourself in between the two of them to try and stop him from getting to her?5 A. Yes. Q. Then what happened? A. Then the police came. Q. S o do you have

-- you put your hand around the front of your neck. Did you ever tell the police that he grabbed you from the back of the neck? A. Huh

- huh. Q. Never told the police t hat? A. No, not the back.

. . . Q. So he did in j ure you when he grabbed you around your neck? A. It didn’t hurt, but it did scratch my neck.

Rhonda also testified that Alexis stepped out of the van and did not fall out.
Alexis testified that she, her two brothers, her mother, Appellant, and Rhonda went to Walmart in November 2018 in Rhonda’s vehicle. Only Alexis’s mother went into the store
while everyone else stayed in the car. When asked what happened on the day in question, Alexis
answered as foll ows:

A. Me and my brother were play ing, and I wanted my hair brush out of the front, and I asked if I could get it, and my grandma told me, “Yes,” t o get it. Q. So you said you and your brother were playing. Were you fighting or... A. No, sir. Q. Why did you need the brush? A. Because he wa s brushing my hair with his fingers and I had a hair brush, so I was going to get it and then

-- Q. Was your hair kind of knotty that day? A. (Moving head up and down.) Q. You are shaking your head, is that a yes? A. Yes , sir. Q. Okay. She can only take do wn “yes,” “no,” verbal answe rs, that’s why. You are not in trouble. So you asked for the hairbrush. Who did you a sk for it? A. My grandma. Q. And what did she say? A. She said, “Yes.” Q. Then what happened? A. When I wen t to get it, [Appellant] took it and threw it on top of the car. And then my grandma told me to get the

– get it off the top of the car. And when I o pened the door, he punched me in my leg. Q. Who is “he”? A. [Appellant]. Q. [Appellant] punched you? A. (Mo ving head up and down.)

. . . Q. So you were reaching for it and then [Appellant] hit you? A. Yes, sir. Q. How did he hit you? A. He just made a fist and hit me in my leg. Q. Made a fist. So did it hurt? A. (Moving head from side to side.)6 Q. Yes or no? A. No, sir. Q. Did you get a bru ise of f of it? A. A little one. Q. A little bruise from it. So it had to heal up from that bruise; right? A. Yes, sir. Q. Did you fall

-- when you got hit, were you able to get the brush or what happened? A. I didn ’ t get it. I just, like, lost my balance a nd the n I fell. Q. So you fell. How did you fall? A. I fell on my bottom.

And when asked about the interaction between Appellant and Rhonda, Alexis stated:

A. He tried to grab me, and then my grandma, like, got in between us , and he grabbed her and left

a mark like right here. (Pointing) Q. Left a mark on her neck.

Photographs of Alexis’s bruise were also admitted into evidence. Appellant asserts there is insufficient evidence of bodily injury for either assault family
viol ence or injury to a child. Specific ally, he urges that because the alleged victims claim they experienced no pain that no bodily injury occurred. B oth offenses require that the State prove, by a preponderance of the evidence in a revocation proceeding, t hat Appellant caused the
victims ’ bo dily injury. See T EX

. P ENAL C ODE A NN

. §§ 2 2 .01(a)(1), 22.04(a)(3). “Bodily injury” is defined as “physical pain , illness, or any imp airment of physical condition.” Id

. § 1.07(8). Evidence of scratches, cuts, and brui ses can be sufficient evidence of bo dily injury. See Bolton
v. State , 619 S.W.2d 166, 167 (Tex. Crim. App. 1981); Arzaga v. State , 86 S.W.3d 767, 77 8 (Tex. App.

— El Paso 2002, no pet.) ; Isaac v. State , No. 05

- 10

- 00492

- CR, 2011 WL 538 6371, at *3 (Tex. App.

— Dallas Nov. 9, 2011, no pet.) (mem. op., not designated for publication). Based on the evidence at trial, the trial court could have reasonably co ncluded that both
Ale xis Mars and Rhonda Mathis suffered bodily injury. See T EX

. P ENAL C ODE A NN

. § 1.07(8)

. The evidence showed that Alexis s uffered a bruise after being hit by Appellant and that Appellant scratched Rhonda’s neck. Such evidence is suffi cient to support a fi nding of bodily injury. See Arzaga , 86 S.W.3d at 778 . Accordingly, the trial court c ould have reasonably found, by a pre ponderance of the evidence, that Appellant committed the offenses of assault family violence and injury to a chil d. See T EX

. P ENAL C ODE A NN

. §§ 21.01(a)(1), 22.04(a)(3); see also7 Simpson v. State , 591 S.W.3d 571, 575 (T ex. Crim. App. 2020) (recognizing th at burden of proof in a revocation proceeding is lower than in a criminal trial). We overrule Appellant’s first
issue.

A TTORNEY ’ S F EES A SSESSMENT In his second issue, Appellant contends that the portion of the distric t clerk ’ s certified bill
of costs st ating that “court appointed attorney fees may be added at a later date” is erroneous and
should be deleted. The S tate has joined in Appellant ’ s request. Standard of Review and Applicable L aw Article 26.05(g) of the Texas Code of Criminal Procedure provides trial courts with discretionary authority to order reimbursement of appointed attorney ’ s fees when the defendant has financial resources that enable him to offset in part or in whole the costs of the legal services

prov ided. T EX

. C ODE C RIM

. P ROC

. A NN

. ar t 26.05(g) (West Supp. 2020). However, 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.” Id

. art. 26.04(p) (West Supp. 2020); see Fulmer v. State , 401 S.W.3d 305, 318

– 19 (Tex. App.

— San Antonio 2013, pet . ref ’ d) (holding the trial court erred in ordering an indigent
criminal de fendant to pay court appointed a ttorney ’ s fees when there was no evi dence of a material change in his financial circumstances). If a criminal action is appealed, an officer of the c ourt shall certify and sign a bill of costs stating the costs that have acc rued and send the bill of costs to the appellate court. See T EX

. C O DE C RIM

. P ROC

. A NN

. art. 103.006 (West 2018). The Texas Court of Criminal Appeals has stated that “attorney ’ s fe es as set forth in a certified bill of costs are effective whether or not
inc orporated by reference in the written judgment.” Armstrong v. Sta te , 340 S.W.3d 759, 767 (Tex. Crim. App. 2011).
Discussion Here, the trial court determined that Appellant was in digent and appointed trial counsel to represent him. No evidence was presented regarding any change in App ellant ’ s financial
circumstances thr oughout the proceedings. The trial court also appointed counsel to represent him in this appeal. Accordingly, b ased on this record, there was no evidence to show that8 Appellant ’ s fina nces had undergone a “material chan ge.” See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.04(p); Mayer v. State , 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). Ordinarily in such circumstances, the appropriate remedy is to delete any assessment of attorney ’ s fees in the trial court ’ s judgment and the ce rtified bill of costs. See Green v. State , No.
04

– 13

– 00018

– CR, 2013 WL 6200328, at *2 (Tex. App.

— San Antonio Nov. 27, 2013, no pet.) (mem. op., not d esignated for publication) (modifying both judgment and bill of costs to delete
assessment of attorney ’ s fe es against indigent criminal defenda nt). Here, neither the trial court in its judgment nor the district clerk in the certified bill of costs express ly order s that Appellant pay a specified amount of court appointed attorne y ’ s fees. However, the certified bill of costs contains the statemen t that “court appointed attorney fees may be added at a later date.” As we have stated, attorney ’ s fees as set f orth in a certified bill of costs are effective even if not incorporated in the written judgment. See Arms trong , 340 S.W.3d at 767. We are re quired to
delete a statement in a certified bill of costs authorizing the assessment of attorney ’ s fees at a late r date when unsupported by evidence of a material change in fi nancial circumstances. See,

e.g. , Rosales

- Ay ala v. State , No. 04

- 15

- 00226

- CR, 20 16 WL 527332, at *1 (Tex. App.

— San Antonio Feb. 10, 2016, no pet.) (mem. op., not designated for publication) (de leting assessment
of attorney ’ s fees from certified bill of cos ts in an amount “to be determined” where tri al court
did not order defendant to pay fees for appointed counsel and no evidence presented of any material change in financial circumstances); see also Benavidez v. State , 423 S.W.3d 520, 522 (Tex. App.

— San Ant onio 2014, no pet.) (deleting assessment of attorney ’ s fees of $2,000.00 in

cert ified bill of costs even though trial court did not expressly assess attorney ’ s fees against defendant, because f ees in certified bill of costs are effective whether or not incorporated by reference in written judgment).
Because the statement in the distri ct clerk ’ s certified bill of costs stating that “court appointed attorney fees may be added at a later date” is e rroneous and unsupported by any material change in Appellan t ’ s financial circumstances, it must be correcte d to delete that language. See Rosa les

- Ayala , 2016 WL 527332, at *1

- *2. Appellant ’ s s econd issue is sustained.

D ISPOSITION Having overruled Appell ant’s first issue and sustained his second issue, we modify t he trial court’s judgment to indicate that cou rt appointed attorney’s fees are not to be assessed9 against Appellant and by deleting the language from the bill of costs that “court appointed

attor ney fees may be added at a later date.” See Benavidez , 423 S .W.3d at 522. We affirm the trial court’s jud gment as modified

.

J AMES T. W ORTHE N Chief Justice

Opinion delivered March 31, 2021. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

T WELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 31 , 2021

NO. 12

- 20

- 00020

- CR

JEREMY ALLEN MATHIS , Appellant V. THE STATE OF TEX AS , Appellee

Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. 349CR

- 15

- 32402 )

THIS CAU SE came to be heard on the appellate record and the brief s filed herein, and the same being considered, because it is the opinion of this court that the judgment of
the court belo w should be modified and as modified, affirmed.
I t is therefore ORDE RED, ADJ UDGED and DECREED that the judgment

o f the court below be modified to delete the language from the bill of costs that “court appointed attorney fees may be added at a later date.” ; in all other respects the judgment of the trial court is
affirmed ; and that this decision be certified to the co urt be low for observance

. James T. Worthen , Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.