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 MI KE FREEMAN, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Arell Cole, Jr. appeals his conviction for driving while intoxi cated and raises two issues. He first claims that 1) the trial court erred in or dering 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 discr etion in admitting hearsa y testimony from two paramedics regarding conversations they overheard between him and his wife. We modify the judgment and affirm it as modified.2 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 po sition of the driver’s sea t, and other circumstantial evidence. Two paramedics also overheard separate conversations between appellant and his wife wherein they discussed who should ta ke responsibility for being the driver. Appellant was found to have a .20 blood alcohol concentr ation at the time of the accident, and the only contes ted issue at trial was whet her he had been driving the vehicle. Issue 1 – Payment of Court- Appointed Attorney’s Fees In the judgment, the trial co urt ordered appellant to pay “a ll costs in this cause.” Also appearing on the same document is a stamped notation afte r 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 t he judgment and by whom is unknown since neither a date nor initials appear next to it. Nevertheless, appell ant contends that the evidence is legally insufficient to suppor t 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 pr ovided him, the trial c ourt shall order him to pay for those services to t he extent that he can. T EX

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. art. 26.05(g) (Vernon Supp. 2009); see Sauceda v. State, 309 S.W.3d 767, 770 (Tex. App.

1 The record does not indicate what portion of the co urt costs were represented by attorney’s fees.3 –Amarillo 2010, no pet.) (addressi ng the matter). Implicit ther ein 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 par ticular 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 b een 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.) (exp laining when a defendant is entitled to appointed counsel). More impo rtantly, appellant being found indigent for purposes of gaining appointed counsel hardly establishe s 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 indigen t, he is presumed to remain so for the remainder of the proceedings, unless there is some proof that hi s 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 t he cause abated and remanded, it is rather settled that when the evidence is held to be l egally 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 to4 bite at the attorney’s fee apple, especiall y when we are cited to nothing of record suggesting that it was precluded fr om taking a first bite. Issue 2 – Hearsay Testimony Next, appellant complains that the trial c ourt erred in admitting the testimony of two paramedics who testified about overhear ing appellant and his wife discuss who should admit to driving the vehi cle at the time of the accident. Appellant objected to the testimony on the grounds of hearsay. We overrule the issue. Hearsay is a statement, ot her than one made by the decl arant while testifying at trial, offered to prove the trut h of the matter asserted. T EX

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. 801(d). The statements at bar consisted of both paramedics testifying that they overheard appellant state that he was drivi ng the vehicle after his wife suggest ed that all should be told that she was driving. Wh ile appellant’s utteranc e could be considered hearsay, it can also be reasonably interpreted as a statement agains t 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 ma king 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 unl ess believing it to be true). As for reiteration of the wife’s portion of the conversation, it could be reasonably interpreted as providing the co ntext for appellant’s admission. As such , it was not being offered to prove the substanc e 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 complaini ng witness as to a statement ma de by the defendant’s wife immediately prior to the crime to the effe ct that the defendant wa s wanting to cut her5 throat was not hearsay because it was m ade 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 r equiring appellant to pay attorney’s fees and affirm the remainder.

Brian Quinn Chief Justice Do not publish.