Joyce McMillin Sturdivant v. The State of TexasAppeal from 54th District Court of McLennan County (opinion )
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Opinion issued May 14, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00089-CR
NO. 01-12-00184-CR
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JOYCE MCMILLIN STURDIVANT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 54th District Court
McLennan County, Texas
Trial Court Case No. 2011-564-C2
OPINION
A jury convicted appellant, Joyce McMillin Sturdivant, of the first degree
felony offenses of murder and attempted capital murder and assessed punishment
at thirty years’ confinement and fifteen years’ confinement, respectively, to run
concurrently. 1 In six issues, appellant contends that (1) and (2) the trial court erred
by not instructing the jury that Deborah Dieterich was an accomplice as a matter of
law with respect to both of the charged offenses; (3) and (4) the State failed to
present sufficient evidence to support her conviction of both offenses; and (5) and
(6) the trial court erred in taxing as court costs the amounts paid to the attorneys
pro tem for the State, to the State’s experts and investigators, to the courtappointed attorneys, and to appellant’s experts and investigators.
We affirm.
Background
A.
The Prior Assault on Joe Sturdivant
Appellant was married to the complainant, Joe Sturdivant, known as “Big
Joe,” for approximately forty years. 2 They lived in Robinson, Texas, which is
1
See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011) (providing that person
commits offense of murder if she intentionally or knowingly causes death of
individual); id. § 19.03(a)(3) (Vernon Supp. 2012) (providing that person commits
offense of capital murder if she employs another to commit murder for
remuneration or promise of remuneration); id. § 15.01(a) (Vernon 2011)
(providing that person commits offense of criminal attempt if, with specific intent
to commit offense, she “does an act amounting to more than mere preparation that
tends but fails to effect the commission of the offense intended”).
2
We will refer to the complainant and appellant’s son from her first marriage, Joe
Sullins, Jr., as “Big Joe” and “Little Joe,” respectively, as the witnesses did in the
underlying trial.
2
located near Waco, 3 and operated a transmission-repair business, Sturdivant
Transmission, together.
In summer of 2007, over a year before the murder of Big Joe, appellant
approached Ali Ali Abdula Muhammad (“Doc Muhammad”), a long-time family
friend, “about doing harm to [Big Joe].” Appellant told Doc Muhammad that she
was “tired of” Big Joe, that he was “so bad” to her, and that she was “[t]ired of
getting beat up.” She kept telling Doc Muhammad that she wanted Big Joe killed.
Doc Muhammad refused to kill Big Joe, but he had no objection to “whoop[ing]
his ass.” Doc Muhammad had financial difficulties, and he testified that appellant
told him that if he could “slow [Big Joe’s] ass down just a little bit,” she would pay
his delinquent taxes.
Doc Muhammad agreed to this plan, and he enlisted another man, Chris
Chatman, to “knock [Big Joe] out.” Doc Muhammad spoke with appellant by
phone early in the morning on September 27, 2007. She told him that she “had
enough” and that Big Joe’s abuse of her “went too far.” She told Doc Muhammad
that she was going to leave the door to the house open and that she was going to
3
The Texas Supreme Court transferred this appeal from the Court of Appeals for
the Tenth District of Texas to this Court pursuant to its docket-equalization
powers. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (“The supreme
court may order cases transferred from one court of appeals to another at any time
that, in the opinion of the supreme court, there is good cause for the transfer.”).
3
put up their noisy dogs so they would not wake Big Joe. She told Doc Muhammad
where in the house Big Joe slept so he could pass that information on to Chatman.
Chatman had a gun with him, and when he got out of Doc Muhammad’s
van, he also took a Gerber knife that had been lying in the van. Doc Muhammad
remained in his van.
Chatman re-appeared shortly thereafter, “sweating and
panting.”
Chatman, who was Doc Muhammad’s next-door neighbor, testified that Doc
Muhammad told him about a woman who had an abusive husband and said that
“something needed to be done.” Around 3:00 or 4:00 a.m. on September 27, 2007,
Doc Muhammad picked Chatman up and stopped at a convenience store where he
called appellant. Doc Muhammad gave Chatman a gun and a knife and told him
that the dogs would be in their pens and that the door would be open. While
Chatman was in the master bedroom, Big Joe woke up, saw that Chatman was
holding a gun, and “immediately jumped out of the bed and just rushed [Chatman
and] grabbed [him].” During the ensuing struggle, Chatman hit Big Joe over the
head with the gun. As Chatman fled, he ran past a bathroom and saw appellant
inside. She was standing “over the bathtub with her fingers in her ears as if
anticipating the gunshot.” When Chatman got back in the van, Doc Muhammad
asked him “if [he] did it, if [he] killed [Big Joe].” Chatman assumed that Doc
Muhammad had wanted him to kill Big Joe.
4
Robinson Police Department (“RPD”) Sergeant G. Hinson testified that he
responded to a burglary-in-progress call at the Sturdivant residence early in the
morning on September 27, 2007. As he approached the house, which sat a distance
from the road, he saw Big Joe driving a vehicle toward him, his face and head
“covered in blood.” Sergeant Hinson requested that Big Joe go back to the house
to wait for medical treatment. During the investigation of the scene, Sergeant
Hinson discovered that the screen of one of the windows in a vacant bedroom had
been cut. Sergeant Hinson found a Gerber knife beneath the window. Brent
Watson, a forensic scientist with the Department of Public Safety, analyzed the
DNA found on the knife and testified that neither Doc Muhammad nor Chatman
could be excluded as contributors to the DNA profile found on the knife. Officers
also inspected appellant’s phone records, which indicated that on the morning of
the assault a phone call was made to the Sturdivant house from a payphone at a
nearby convenience store.
Sergeant Hinson also spoke with appellant, who told him that she had gone
to the bathroom and that while she was in there “somebody hit her in the back of
the head knocking her out.” He stated that the Sturdivants had at least five or six
“pretty noisy” dogs at their house, and he opined that the dogs would have been
alerted if an intruder entered the house. Laurie Peterson, a volunteer EMT for the
Robinson Fire Department who responded to the 9-1-1 call, agreed that the
5
Sturdivants had “quite a few dogs” and that they were “very hostile.” Peterson
testified that she observed appellant at the scene, that appellant had no noticeable
injuries, and that appellant appeared alert and oriented. Dr. Nathan Forrest, the
radiologist who interpreted the CT scan performed on appellant when she was
taken to the hospital after the break-in, testified that he saw “no evidence of
trauma” on appellant’s CT films.
Appellant testified on her own behalf and stated that Big Joe “never laid a
hand on [her].” She denied ever telling Doc Muhammad that Big Joe was abusing
her, and she denied ever telling him that she wanted Big Joe hurt. With regard to
the September 27, 2007 break-in and assault, she stated that she was not aware that
anything unusual was going on until Big Joe found her passed out in the bathroom
and woke her up.
No one was convicted of this offense. Doc Muhammad and Chatman both
testified that they received immunity from prosecution in exchange for their
truthful testimony in this proceeding.
B.
The Murder of Joe Sturdivant
Deborah Dieterich used to work for TPS Parts, a company that delivered
transmission parts to various auto shops, including Sturdivant Transmission, where
she met appellant. During the summer of 2008, a number of months after the 2007
break-in and assault on Big Joe, appellant approached Dieterich about finding
6
someone to murder Big Joe. According to Dieterich, she and appellant were
having a conversation and appellant “just asked [her] if [she] knew anybody that
could have her husband killed.”
Dieterich responded that she did not know
anyone, but she would ask around. Appellant told her that she did not have any
money to pay a hired killer, but she did have jewelry that she could use for
payment.
Dieterich first approached Glendell Tate and asked him if he would kill
Dieterich’s own husband. She later told him that “she had a friend that had a more
pressing job that was more important than her husband.” Specifically, Dieterich
told him that appellant wanted Big Joe killed, and Dieterich pointed Big Joe out to
Tate by driving him by Sturdivant Transmission and a local restaurant where Big
Joe usually ate lunch. Dieterich showed him some jewelry that she planned to use
as payment and told Tate that the jewelry belonged to appellant.
After Tate declined to get involved, Dieterich approached Carlos Garcia and
asked him if he knew anyone who could kill Big Joe. Garcia responded that he
did, but he would have to consult the man first. Garcia recruited Chris Taylor, and
they told Dieterich that they wanted $20,000 to commit the murder. Dieterich
relayed this information to appellant, who again stated that she did not have any
money but that she did have jewelry.
Dieterich asked Garcia if this was
acceptable, and, after he consulted with Taylor, he confirmed to Dieterich that they
7
would accept jewelry for payment. Appellant then gave Dieterich a box that had
two rings in it. Dieterich identified State’s Exhibit 63 as one of the rings that had
been in that box.
Dieterich met with Garcia and Taylor and gave them the box. Then, they all
drove to Cameron Park in Waco, and Taylor told Dieterich that he wanted
appellant to write down exactly “what she wanted done and how she wanted it
done to her husband.” To Dieterich’s knowledge, appellant did not do this, but
instead she later asked Dieterich to get the rings back. Appellant stated that “she’d
take care of it herself.” Dieterich attempted to recover the rings, but she was
unsuccessful. 4
Garcia sold one of the rings to a long-time friend of his, James Bond, for
$400 during the summer of 2008. Robinson police officers later tracked the ring
down and seized it from Bond. Appellant’s son, Joe Sullins Jr. (“Little Joe”), and
his wife, Rhonda Rostockyj, both identified the ring as one of appellant’s.
Although appellant refused to state definitively that the ring was hers, she
acknowledged that it looked like one that she had owned.
4
Billy Chalfant was with Glendell Tate on one occasion when he met with
Dieterich, and, during this conversation, he learned that “another lady, [appellant]
had already given 25- or $30,000 worth of jewelry to have her husband killed and
the people got off with the jewelry and didn’t kill her husband.” Tate later told
Chalfant that Dieterich’s “friend” and her husband own a transmission shop.
8
At some point in time before Big Joe died, appellant asked Dieterich if she
would go to a particular H-E-B in Waco and purchase a shower cap for her.
Dieterich thought that this was a strange request, but she complied. After she gave
appellant the shower cap, appellant stated that she “had all she needed now.”
Dieterich saw appellant at Sturdivant Transmission on October 8, 2008, the
day Big Joe died.
She testified that appellant appeared “[u]pset like
overwhelmed,” and when asked by the State to clarify, she responded, “Just like a
relief. Like the weight was lifted off of her.”
Sergeant Hinson testified that he responded to a 9-1-1 call from the
Sturdivant residence on October 8, 2008. He was the second person to arrive at the
house, and he had to assist volunteer fire chief G. Groppe in opening the front gate
that was blocking the driveway leading to the house. RPD Officer P. Carey, who
entered the property behind Sergeant Hinson, went to appellant, who was walking
around by the garage, and Sergeant Hinson and Chief Groppe tried to enter the
house through the front door, which was locked. Sergeant Hinson and Officer
Carey then entered the house through the garage. When Sergeant Hinson entered
the master bedroom, he saw Big Joe “laying in the bed in a puddle of blood.”
Sergeant Hinson testified that several things about the house struck him as
unusual. In the kitchen, two drawers had been pulled out and were blocking the
hallway. A table in the master bedroom was turned over, and both the inside and
9
outside sliding doors of the patio in the bedroom were slightly open, but this
opening was not large enough for someone to fit through. He found an ice pick
stuck in the lock of an interior door and a “meat prong” lying on the floor of the
hallway. The room with the ice pick, a vacant bedroom, also had a gun safe, which
had a key in the lock, but a pipe wrench was also lying on the floor by the safe.
Sergeant Hinson stated that Big Joe was an avid gun collector, and guns were
“scattered all through the house.” He stated that he did not see any grass on the
kitchen or utility room floor.
Officer Carey also testified that he did not see any grass clippings on the
utility room floor. He stated that the Sturdivants had at least five dogs that were
“very loud and acting very aggressive towards [the officers].” The dogs nipped at
the officers’ heels, and although the dogs became “a little bit less vocal about
[their] presence” after the officers had been at the house for a while, they remained
wary the entire time. Officer Carey described appellant’s demeanor at the scene as
“[n]ot exactly in shock, but cold, detached.” She was not tearful. Officer Carey
also observed a candle burning in the master bedroom. The wax was almost
completely liquefied, and Officer Carey believed that the candle had been burning
for a “very long time.”
Sergeant Hinson contacted RPD Detective G. Young and told him that they
had found Big Joe lying in bed with apparent gunshot wounds to his back and
10
head. Detective Young agreed that the Sturdivants’ dogs were aggressive and
“very” noisy. Detective Young also testified about the ice pick in the interior door
lock, the sets of keys in the gun safe and the pipe wrench lying on the floor in front
of the safe, and the scented candle burning in the master bedroom. Detective
Young opined that the ice pick “appeared to be staged” because the door involved
was an interior door and was “[v]ery easy to get into” and a burglar would have
just kicked the door in, instead of trying to pick the lock with an ice pick. He also
stated that the drawers that had been opened may have been opened in order to
stage a burglary attempt, especially because it did not appear that the drawers had
been rifled through. He also stated that it was odd that the patio door in the
bedroom was open, given the home invasion that had occurred the previous year.
Detective Young noticed a full pot of coffee in the kitchen—appellant told the
officers that her usual custom was to make a pot of coffee for Big Joe before she
left for work in the morning—and Big Joe’s dentures sitting on the kitchen
counter. He believed that Big Joe never got out of bed that morning. When asked
to describe appellant’s demeanor at the scene, Detective Young stated that he
“didn’t notice that she was crying, you know, uncontrollably or anything of that
nature. [There was n]othing [about her behavior] that just really stood out to me.”
RPD Detective M. Noel drove out to the murder scene at the request of
Detective Young.
He also agreed that the Sturdivants’ dogs were “pretty
11
aggressive” and noisy and that, if a stranger had come onto the property, “the dogs
would have alerted to their presence.” He noticed the full pot of coffee and Big
Joe’s dentures in the kitchen. He reported being puzzled by both the ice pick in the
interior door lock and the pipe wrench lying in front of the gun safe, which had
keys in its lock.
The last room that Detective Noel entered was the master
bedroom, and he “noticed an immediate cooler temperature” in that room, as well
as a candle that appeared to have been burning for a while.
Dr. Marc Krouse, the chief deputy medical examiner for Tarrant County,
performed Big Joe’s autopsy. Dr. Krouse testified that Big Joe died of a gunshot
wound to the head and a gunshot wound to the back. The entry wound on Big
Joe’s back was surrounded by gunpowder stippling, indicating that this shot was
fired from a “fairly close distance.” He stated that Big Joe’s body displayed signs
of lividity, indicating that he had lain face down for approximately eight or nine
hours before being discovered. Dr. Krouse estimated that Big Joe was probably
killed some time in the morning. The State asked Dr. Krouse what effect the
significantly cooler temperature in the master bedroom would have on the body,
and Dr. Krouse responded that it would “slow the onset and disappearance of rigor
mortis,” but it would have very little effect on lividity, which “would begin to
occur significantly by eight or nine hours [after death] anyway.”
12
RPD officers collected the clothes that appellant was wearing on the day of
the murder and tested portions of the clothing for the presence of gunshot primer
residue. Thomas White, a forensic chemist with the Texas Department of Public
Safety crime laboratory, testified that he analyzed the results of these tests. During
his testimony, he explained that gunshot primer residue is made up of three
elements—lead, barium, and antimony—and escapes from a firearm when that
weapon is fired. The residue cools and solidifies very rapidly. While the elements
are in their gaseous state, they can combine; thus, gunshot primer residue particles
that subsequently settle on a nearby surface can be composed of any combination
of these three elements. White testified that a “characteristic” gunshot primer
residue particle contains all three elements and that, with very rare exceptions, the
only event that creates that particular combination of elements is the discharge of a
firearm.
An “indicative” particle contains a combination of two of the three
elements, such as lead and barium or lead and antimony. Actions other than
discharging a firearm can create these element combinations, “[s]o they are
indicative of gunshot primer residue, but they’re not exclusive to it.” White stated
that a characteristic particle warrants a conclusion that the “object [tested] either
was nearby a weapon when it was discharged or that [the] object touched
something with gunshot residue on it.”
13
In this case, the Waco branch of the Department of Public Safety collected
testing stubs from both sleeves and both pockets of the jacket that appellant was
wearing on the day of the murder.
White confirmed the presence of one
characteristic and one indicative gunshot residue particle on the left sleeve of the
jacket and one indicative particle on the right pocket.
These results were
“consistent with the jacket having been in immediate proximity of a weapon as [the
weapon was] being fired” or having “[c]ontacted a surface with gunshot primer
residue particles.” White could not state definitively that appellant discharged a
firearm on the day of the murder; instead, he could only offer a possible
explanation for the particular results.
Tom Bevel, a forensic analyst specializing in crime-scene reconstruction,
analyzed the physical evidence, the autopsy report, and the crime scene
photographs in this case. He testified, based on the pictures of Big Joe lying in
bed, that the pictures were “consistent with him being asleep in bed” when he was
shot, with no evidence that the dogs alerted him and woke him up before he was
killed. Bevel agreed with the responding officers that parts of the murder scene
appeared to have been staged to resemble a burglary. Bevel declined to give the
name of who he believed committed the murder, but he did state the
“characteristics that fit the physical evidence”:
It is somebody who has access to the residence that the dogs know
that would be expected to be able to do such an event without alerting
14
the deceased from his sleep where he has defensive movement or
other movements reacting to a gunshot. And that it is the intent of the
person doing this to kill this individual.
Several days after the murder, Glendell Tate contacted Detective Young and
told him that Dieterich had approached him over the summer, that she was looking
for someone to kill Big Joe at appellant’s direction, and that she had offered
$20,000 worth of jewelry as payment to commit the murder.
Tate also told
Detective Young that Dieterich later told him that she had hired two men and had
given them two rings as payment to kill Big Joe and that appellant “was upset
because it had not been done.” Detective Young spoke with Garcia and Taylor,
who admitted taking the jewelry from Dieterich, “[b]ut they failed to carry out the
act.”
Linda Key testified that her husband had worked for Sturdivant
Transmission.
Key developed a friendship with appellant, and she would
occasionally stop by the shop and socialize with appellant. Key and appellant
often complained about their husbands to one another, and, on one occasion,
appellant told her that they needed to “hire a two-for-one hit man.” Key at first
thought that appellant was joking, but appellant then said that she was being
serious. Little Joe agreed that appellant would “come in [to the shop] a lot of times
talking about killing” Big Joe. Little Joe also testified that on the day of the
murder appellant arrived at work around 10:30 a.m.
15
Appellant testified that on the morning of the murder she went about her
usual routine. She heard Big Joe cough, which usually signaled that he was awake,
and she turned on the coffee pot for him and left for work. When she arrived home
that evening, she noticed bits of dried grass on the floor of the utility room and
kitchen, and she yelled at Big Joe about it, thinking he was working in another part
of the house. Appellant walked into their bedroom and noticed Big Joe still lying
on the bed. When he did not wake up, she called 9-1-1 and, at their direction, tried
to turn him over, which was when she saw the blood on the bed. She denied
murdering Big Joe or speaking to Dieterich about hiring someone to kill Big Joe.
The State indicted appellant for capital murder, alleging that she murdered
Big Joe to recover life insurance proceeds, and attempted capital murder. The jury
convicted appellant of the lesser-included offense of murder and attempted capital
murder, and it assessed punishment at thirty years’ confinement and fifteen years’
confinement, respectively.
The trial court ordered that these sentences run
concurrently. The court, which had previously determined that appellant was
indigent and required court-appointed counsel, imposed court costs in the amount
of $64,538.22 against appellant. This amount included attorney pro tem fees, 5 fees
for the State’s investigators and experts, court-appointed counsel’s attorney’s fees,
5
The McLennan County Criminal District Attorney’s Office moved to recuse itself
on conflict of interest grounds. The trial court appointed an attorney pro tem to act
for the State pursuant to Code of Criminal Procedure article 2.07. See TEX. CODE
CRIM. PROC. ANN. art. 2.07 (Vernon 2005).
16
and fees for defense investigators and experts.
The trial court included the
following special finding in the final judgment:
The Court finds that the defendant has financial resources that enable
her to pay in whole the assessed costs. The Court assesses all court
appointed attorney’s fees, attorney pro tem fees, expert witness fees,
and investigator’s fees as costs in this cause and Orders the defendant
to pay the same.
Appellant did not file a post-judgment motion objecting to the inclusion of these
fees in the costs award. This appeal followed.
Sufficiency of Evidence
In her second and third issues, appellant contends that the State failed to
present sufficient evidence that she committed the offenses of murder and
attempted capital murder.
A.
Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
17
S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the
facts and reject another, and it may reject any part of a witness’s testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson
v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted).
We may not re-evaluate the weight and credibility of the
evidence or substitute our judgment for that of the fact finder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
We afford almost complete
deference to the jury’s credibility determinations. See Lancon v. State, 253 S.W.3d
699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence
in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.
2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(“When the record supports conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the prosecution and therefore defer to that
determination.”).
B.
Murder
Appellant was originally indicted for capital murder, but the jury found her
guilty of the lesser-included offense of murder. To support this conviction, the
State had to establish that appellant intentionally or knowingly caused Big Joe’s
death by shooting him with a firearm. See TEX. PENAL CODE ANN. § 19.02(b)(1)
18
(Vernon 2011). Appellant argues on appeal that the evidence was insufficient
because the State failed to prove motive or offer a murder weapon into evidence,
and the State’s gunshot primer residue expert refused to state definitively that
appellant fired the weapon that killed Big Joe.
The State presented evidence that in 2007, a year before the murder,
appellant complained to Doc Muhammad that Big Joe abused her and “[s]he
wanted something done about it.” Appellant “kept saying she wanted [Big Joe]
killed,” but when Doc Muhammad refused to kill Big Joe, they agreed that he and
Chris Chatman would “knock him out.” Doc Muhammad testified that appellant
said, “[I]f you can slow his ass down just a little bit, I’ll pay your [delinquent]
taxes.” Linda Key, whose husband used to work at Sturdivant Transmission,
would socialize with appellant while visiting the shop, and she testified that she
and appellant would often complain about their husbands. One day, appellant
stated to Key that they needed to “hire a two-for-one hit man.” Appellant told Key
that she “was being serious.”
Little Joe also testified that appellant would
complain about Big Joe and would come into the shop “a lot of times talking about
killing him.” Although several witnesses, including Little Joe, testified that Big
Joe did not abuse appellant, the State presented evidence that appellant had
complained of abuse.
19
It is the province of the jury to resolve conflicts in the evidence, and we
defer to that determination. See Clayton, 235 S.W.3d at 778. Thus, contrary to
appellant’s assertion on appeal that she had no reason to want to harm Big Joe, the
State presented evidence that she did have motive, that she had mentioned hiring a
hit man and had talked about killing Big Joe on several occasions to a couple of
different people, that she had, on a previous occasion, offered to pay two others to
assault Big Joe, and that her original plan on that previous occasion was to have
Big Joe killed. See Temple v. State, 342 S.W.3d 572, 585 (Tex. App.—Houston
[14th Dist.] 2010) (noting that although motive is not essential element of crime,
“evidence of motive is generally admissible because it is relevant as a
circumstance tending to prove guilt”), aff’d, 390 S.W.3d 341 (Tex. Crim. App.
2013); see also Rogers v. State, 183 S.W.3d 853, 864 (Tex. App.—Tyler 2005, no
pet.) (“[E]vidence of prior assaults on and threats toward the victim by the
defendant is relevant to show the defendant’s previous relationship with the victim
as well as the defendant’s state of mind at the time of the offense.”); Pena v. State,
864 S.W.2d 147, 150 (Tex. App.—Waco 1993, no pet.) (holding same).
In arguing that the evidence was insufficient, appellant points out that the
murder weapon was not recovered and was not entered into evidence. The State,
however, correctly argues that the inability to recover the murder weapon does not
render the evidence supporting the conviction insufficient.
20
See Temple, 342
S.W.3d at 591 (noting that “the State need not connect appellant to a specific
murder weapon or ammunition; a conviction may be based entirely on
circumstantial evidence”); Guevara v. State, 297 S.W.3d 350, 359–60 (Tex.
App.—San Antonio 2009, pet. ref’d) (holding evidence sufficient to support
murder conviction even though murder weapon never recovered).
Furthermore, although Thomas White, the State’s gunshot-residue expert,
would not definitively state that appellant fired the firearm that killed Big Joe,
White also testified that one characteristic and one indicative gunshot primer
residue particle was confirmed on the left sleeve of appellant’s jacket and one
indicative gunshot primer residue particle was confirmed on the right pocket of her
jacket. White testified that a “characteristic” particle contains all three of the
elements of gunshot primer residue—lead, barium, and antimony—and, generally,
only the discharge of a firearm creates that specific element combination. An
“indicative” particle contains two of the three elements. White testified that these
test results were “consistent with the jacket having been in immediate proximity of
a weapon as [the weapon was] being fired.”
Although appellant presented evidence that she, at the direction of the 9-1-1
dispatcher, tried to roll Big Joe’s body over and that she often helped Big Joe clean
the many firearms they kept around their house, which may have accounted for the
presence of gunshot primer residue on her clothing, a reasonable inference from
21
the State’s evidence is that appellant had gunshot primer residue on her clothing
because she fired the murder weapon.
When the record supports conflicting
inferences, we presume that the jury resolved the conflict in favor of the verdict,
and we defer to this resolution. See Clayton, 235 S.W.3d at 778.
Officers testified that physical evidence in the home—such as the ice pick
stuck in the lock of an interior door, a meat fork lying on the floor in the hall, and
the sets of keys and a pipe wrench located near the gun safe—indicated that the
scene had been “staged,” suggesting an attempt to make it appear as though
burglary was the motive for the murder. See Temple, 342 S.W.3d at 588 (“Another
circumstance of guilt was testimony and physical evidence that appellant’s house
was ‘staged’ to give the impression a burglary occurred.”). Officers also testified
that the full pot of coffee left warming in the kitchen, the presence of Big Joe’s
dentures lying out on the kitchen counter, and the manner in which he was lying in
bed all suggested that he was shot while he was sleeping. The testimony reflected
that the Sturdivants had several dogs that barked loudly at everyone who arrived at
the house, but not at appellant. Tom Bevel, the State’s forensic analyst, provided
his opinion on who committed the murder based on the physical evidence:
It is somebody who has access to the residence that the dogs know
that would be expected to be able to do such an event without alerting
the deceased from his sleep where he has defensive movement or
other movements reacting to a gunshot. And that it is the intent of the
person doing this to kill this individual.
22
Dr. Krouse testified that Big Joe was likely killed eight or nine hours before
he was eventually found around 5:30 p.m., or approximately 8:30 to 9:30 a.m.
Little Joe testified that appellant arrived at work around 10:30 a.m. that day. The
responding officers also stated that the bedroom in which Big Joe was found was
noticeably cooler than the rest of the house, and Dr. Krouse stated that a cooler
temperature would “slow the onset and disappearance of rigor mortis.”
The
officers further testified that a scented candle was burning in the bedroom when
they arrived, and it appeared that the candle had been burning all day. John
Epperson, appellant’s neighbor, testified that he did not observe any unusual
activity at the Sturdivant’s house during that day. This combined evidence leads to
the reasonable inference that appellant, who had access to the house and who was
familiar to the dogs, killed her husband in the morning, manipulated the scene to
appear as though burglary was a motive and to delay the onset of rigor mortis, and
left for work. See Clayton, 235 S.W.3d at 778 (holding that we defer to jury’s
resolution of conflicting inferences).
We conclude that, viewing the evidence in the light most favorable to the
verdict, a rational jury could have found beyond a reasonable doubt that appellant
intentionally or knowingly killed Big Joe.
We overrule appellant’s second issue.
23
C.
Attempted Capital Murder
A person commits capital murder if the person intentionally or knowingly
causes the death of another and the person commits the murder for remuneration or
the promise of remuneration or employs another to commit the murder for
remuneration or the promise of remuneration.
TEX. PENAL CODE ANN.
§ 19.03(a)(3) (Vernon Supp. 2012). A person commits the offense of attempted
capital murder if, with the specific intent to commit capital murder, she does an act
amounting to more than mere preparation that tends but fails to effect the
commission of the offense intended. Id. § 15.01(a) (Vernon 2011) (stating law of
criminal attempt); Santellan v. State, 939 S.W.2d 155, 162–63 (Tex. Crim. App.
1997) (stating same in case of murder in course of attempted kidnapping).
The law of criminal attempt “does not require that every act short of actual
commission of the offense be accomplished.” Santellan, 939 S.W.2d at 163; Sorce
v. State, 736 S.W.2d 851, 857 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d)
(“The fact that an appellant could have taken further actions without actually
committing the offense does not act so as to render his actions nothing more than
mere preparation.”) (citing Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim.
App. 1981)). “There is necessarily a gray area between conduct that is clearly no
more than mere preparation and conduct that constitutes the last proximate act
prior to actual commission of the offense.” Come v. State, 82 S.W.3d 486, 489
24
(Tex. App.—Austin 2002, no pet.) (citing McCravy v. State, 642 S.W.2d 450, 460
(Tex. Crim. App. 1982)). Convictions for attempted offenses pursuant to section
15.01 “must necessarily be considered on a case-by-case basis.” Gibbons v. State,
634 S.W.2d 700, 707 (Tex. Crim. App. 1982).
Appellant argues that the State failed to present sufficient evidence that she
committed attempted capital murder because Dieterich testified that Garcia and
Taylor wanted the agreement in writing before they killed Big Joe and appellant
instructed Dieterich to get her rings back from the men, which indicated that “the
parties had not advanced beyond a preparatory stage.” We disagree.
In Doty v. State, the Court of Criminal Appeals considered the nature of
“murder for hire” offenses:
Murder for remuneration under [Penal Code section] 19.03(a)(3)
involves, at a minimum, three individuals: (1) principal, (2) agent,
and (3) victim. The interaction of these individuals is very simple.
The principal hires the agent to kill the victim. In such a relationship,
the [o]nly act required of the principal is the hiring of the agent. Once
the employment “contract” is made and consideration passes, there is
more than mere preparation. In fact, once such a contract of
employment exists, the principal has completed his role and may be
guilty of capital murder or attempted capital murder, depending on the
success of his agent.
585 S.W.2d 726, 727–28 (Tex. Crim. App. 1979), overruled on other grounds by
Beets v. State, 767 S.W.2d 711, 736–37 (Tex. Crim. App. 1987) (noting that
defendant acting unilaterally can commit “murder for remuneration” and
overruling Doty to extent that it limited murder for remuneration to situations
25
involving “a minimum of” three actors). The issue in Doty was the sufficiency of
the allegations in the indictment, and the Court of Criminal Appeals held that
because the indictment “allege[d] a contract of employment whereby the victim
was to be killed and allege[d] payment by appellant as an act beyond mere
preparation,” the indictment was sufficient. Id. at 728.
Here, Dieterich testified that appellant asked her if she knew anyone who
could kill Big Joe. Dieterich first approached Tate, who declined to get involved,
and then approached Garcia, who said that he knew someone who might be
willing. Garcia spoke with Taylor and they agreed to kill Big Joe for $20,000.
When Dieterich reported this to appellant, appellant told Dieterich that she needed
to pay with jewelry. Garcia and Taylor confirmed to Dieterich that this was an
acceptable method of payment. Appellant then gave Dieterich a box that had two
rings inside, and Dieterich passed these rings on to Garcia and Taylor. 6 Garcia and
Taylor then insisted that appellant write out instructions on how she wanted Big
Joe murdered, which appellant did not do.
Approximately one month later,
appellant decided to “take care of it herself,” and she asked Dieterich to get the
rings back. Garcia did not return the rings.
6
Garcia sold one of the rings to James Bond. Robinson Police later recovered the
ring from Bond, and several witnesses testified that the ring was appellant’s.
Appellant refused to state that the ring was hers, but she did acknowledge that the
ring looked like one that she had owned.
26
Dieterich’s testimony established that she acted as an intermediary between
appellant, Garcia, and Taylor, that Garcia and Taylor initially agreed to kill Big Joe
for $20,000, that appellant suggested paying in jewelry instead, and that, when
Garcia and Taylor agreed to this method of payment, appellant provided rings as
payment for Garcia’s and Taylor’s future efforts, thus creating an “employment
contract” to kill Big Joe. See Doty, 585 S.W.2d at 727. Even if Garcia and Taylor
never actually intended to kill Big Joe, appellant’s role in this scheme was
complete once she furnished consideration. See id. at 727–28. We conclude that
her acts amount to “more than mere preparation.”
We hold that, viewing the evidence in the light most favorable to the verdict,
the State presented sufficient evidence that appellant committed the offense of
attempted capital murder.
We overrule appellant’s third issue.
Accomplice-Witness Instruction
In her first issue, appellant contends that the trial court erred in failing to
instruct the jury that Dieterich was an accomplice witness as a matter of law with
respect to the attempted capital murder offense. In her sixth issue, appellant
contends that the trial court erroneously failed to instruct the jury that Dieterich
was an accomplice witness as a matter of law with respect to the murder offense.
27
A.
Law Governing Accomplice-Witness Instructions
Code of Criminal Procedure article 38.14 provides that a conviction cannot
rest on the testimony of an accomplice “unless corroborated by other evidence
tending to connect the defendant with the offense committed; and the corroboration
is not sufficient if it merely shows the commission of the offense.” TEX. CODE
CRIM. PROC. ANN. art. 38.14 (Vernon 2005). The corroborating evidence need not
directly link the accused to the offense or be sufficient in itself to establish guilt;
instead, the corroborating evidence need only tend to connect the accused to the
crime committed. Moron v. State, 779 S.W.2d 399, 401 (Tex. Crim. App. 1985).
The testimony of one accomplice witness may not be used to corroborate the
testimony of another accomplice witness.
Id.
“Even apparently insignificant
incriminating circumstances may sometimes afford satisfactory evidence of
corroboration.” Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
Furthermore, there need only be some non-accomplice evidence tending to connect
the defendant to the crime, not to every element of the crime. Joubert v. State, 235
S.W.3d 729, 731 (Tex. Crim. App. 2007). When determining the sufficiency of
the corroborating evidence, we view the non-accomplice evidence in the light most
favorable to the verdict. Coutta v. State, 385 S.W.3d 641, 657 (Tex. App.—El
Paso 2012, no pet.) (citing Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim.
App. 1997)).
28
An accomplice is a person who participates before, during, or after the
commission of the offense with the requisite culpable mental state. Smith v. State,
332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (citing Druery v. State, 225 S.W.3d
491, 498 (Tex. Crim. App. 2007)). To be considered an accomplice, the person
“must have engaged in an affirmative act that promotes the commission of the
offense that the accused committed.” Id. The witness’s complicity with the
accused in the commission of another offense apart from the charged offense does
not make the witness’s testimony that of an accomplice witness. Druery, 225
S.W.3d at 498.
A witness may be considered an accomplice as a matter of law or as a matter
of fact, and the evidence in the particular case dictates whether an accomplicewitness instruction is required. Smith, 332 S.W.3d at 439 (citing Cocke v. State,
201 S.W.3d 744, 747 (Tex. Crim. App. 2006)).
When the evidence clearly
shows—i.e., there is no doubt—that a witness is an accomplice as a matter of law,
the court must instruct the jury accordingly. Id.; Paredes v. State, 129 S.W.3d 530,
536 (Tex. Crim. App. 2004) (“An accomplice as a matter of law is one who is
susceptible to prosecution for the offense with which the accused is charged or a
lesser included offense.”). When, however, there is doubt as to whether a witness
is an accomplice—i.e., the evidence is conflicting—then the court may instruct the
jury to determine the witness’s accomplice status as a fact issue. Id. at 439–40.
29
When the evidence clearly shows that the witness is not an accomplice, then the
court is not required to instruct the jury on the accomplice-witness rule at all. Id. at
440.
B.
Failure to Instruct for Attempted Capital Murder Offense
The State agrees that Dieterich was an accomplice as a matter of law to the
attempted capital murder offense and that the trial court erred in failing to so
instruct the jury.
Once we determine that error exists in the charge, we review the record to
determine whether the error caused sufficient harm to require reversal of the
conviction. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). When, as
here, the defendant fails to object or states that she has no objection to the charge,
we will not reverse for jury-charge error unless the record shows “egregious harm”
to the defendant. See id. at 743–44.
In addressing the purpose of the accomplice-witness instruction, the Court of
Criminal Appeals stated:
The [accomplice-witness] instruction does not say that the jury should
be skeptical of accomplice witness testimony. Nor does it provide for
the jury to give less weight to such testimony than to other evidence.
The instruction merely informs the jury that it cannot use the
accomplice witness testimony unless there is also some nonaccomplice evidence connecting the defendant to the offense. Once it
is determined that such non-accomplice evidence exists, the purpose
of the instruction is fulfilled, and the instruction plays no further role
in the factfinder’s decision-making. Therefore, non-accomplice
evidence can render harmless a failure to submit an accomplice
30
witness instruction by fulfilling the purpose an accomplice witness
instruction is designed to serve.
Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). A harmless error
analysis in cases involving the omission of an accomplice-witness instruction
should take into account the existence and strength of any non-accomplice
evidence.
See id.
In determining the strength of a particular item of non-
accomplice evidence, we consider (1) its reliability and believability and (2) the
strength of its tendency to connect the defendant to the crime. Id. The reliability
inquiry is satisfied if (1) there is non-accomplice evidence, and (2) there is no
rational and articulable basis for disregarding the non-accomplice evidence or
finding that it fails to connect the defendant to the offense. Id. at 633. “Under the
egregious harm standard, the omission of an accomplice witness instruction is
generally harmless unless the corroborating (non-accomplice) evidence is ‘so
unconvincing in fact as to render the State’s overall case for conviction clearly and
significantly less persuasive.’” Id. at 632 (quoting Saunders v. State, 817 S.W.2d
688, 692 (Tex. Crim. App. 1991)); see also Casanova v. State, 383 S.W.3d 530,
534 (Tex. Crim. App. 2012) (noting that, when conducting harm analysis in
situations in which trial court erroneously failed to give accomplice-witness
instruction, reviewing court must consider entire record).
Appellant argues that the non-accomplice evidence was too weak to tend to
connect her with the commission of the attempted capital murder offense, and she
31
points to the facts that Garcia and Taylor never actually tried to kill Big Joe and
that she did not identify the ring that was recovered from Bond as being hers.
Instead, she testified only that the ring looked like one that she had owned. As the
State points out, however, the record contains additional evidence tending to
connect appellant to the offense.
Both Glendell Tate and Billy Chalfant testified that Dieterich spoke with
them about hiring someone to kill Big Joe on appellant’s request. Tate, who was
the first person Dieterich contacted about the attempted murder, stated that
Dieterich discussed payment with him, and, during this discussion, she showed
him some jewelry, which she said belonged to appellant. Tate also testified that
Dieterich told him that she had hired Garcia and a friend of his to commit the
murder and that she had given them jewelry as payment. Chalfant testified that
Dieterich told him that “another lady [appellant], [Dieterich’s] friend had already
given 25- or $30,000 worth of jewelry to have her husband killed and the people
got off with the jewelry and didn’t kill her husband.”
Linda Key testified that she and appellant frequently complained about their
husbands to each other, and, one day, appellant told her that they “need[ed] to hire
a two-for-one hit man.” Key at first thought that appellant was joking, but then
appellant stated that she was being serious. Little Joe stated that appellant would
come into the shop “a lot of times talking about killing” Big Joe.
32
Bond testified that, during the summer of 2008, Garcia, a friend of his,
approached him with a ring that he wanted to sell. Bond paid Garcia $400 for this
ring, and the ring was later seized by police officers. The only thing that Garcia
told Bond about how he acquired the ring was that “he got some free stuff.” Little
Joe and Rhonda Rosktockyj both later identified the ring as belonging to appellant.
Appellant acknowledged that the ring procured from Bond and entered into
evidence looked like a ring that she had owned, although she refused to state that it
was hers.
The State also presented evidence, through the testimony of Doc
Muhammad and Chris Chatman, that appellant had a motive for wanting Big Joe
dead—his ongoing abuse of her—and that appellant had tried on a previous
occasion a year earlier to hire the men to kill Big Joe.
According to Doc
Muhammad, appellant approached him and originally asked him if he would kill
Big Joe, but, when he expressed his unwillingness to kill, appellant told him that if
he could “slow [Big Joe’s] ass down just a little bit,” she would pay his delinquent
taxes. This incident resulted in Chatman’s assaulting Big Joe.
The Court of Criminal Appeals has held that “[m]otive and opportunity
evidence is insufficient on its own to corroborate accomplice-witness testimony,
but both may be considered in connection with other evidence that tends to connect
the accused to the crime.” Smith, 332 S.W.3d at 442. The corroborating evidence
33
need not be legally sufficient in itself to establish the defendant’s guilt. Casanova,
383 S.W.3d at 538. Instead, the corroborating evidence need only tend to connect
appellant to the commission of the attempted capital murder offense. See id. Here,
the State presented evidence of motive in addition to other non-accomplice
corroborating evidence that tends to connect appellant to the offense. 7
Although corroborating evidence may be sufficient to tend to connect the
defendant to the offense, it may also be inherently unreliable or unbelievable, such
that the failure to give an accomplice-witness instruction results in harm. Id. at
539.
Here, although appellant challenged the State’s evidence, the evidence
tending to connect appellant to the attempted capital murder offense was not
“insubstantial.” See id. at 540. A disinterested witness, Linda Key, testified that
appellant had mentioned hiring a hit man, and two other witnesses, Little Joe and
Doc Muhammad, testified that appellant had expressed her desire to kill Big Joe or
have him killed. Appellant had previously solicited Doc Muhammad to kill Big
Joe, but she eventually settled on hiring Muhammad and Chatman to “knock [Big
Joe] out.” Glendell Tate testified that, in addition to asking him if he would kill
7
Appellant presented contradictory evidence—namely, her testimony that she never
asked Dieterich to hire someone to kill Big Joe and her testimony that Big Joe
never abused her and she therefore had no motive to want him dead—but the
Court of Criminal Appeals has held that the presence of contradictory evidence
“does not translate into a conclusion that there was no evidence that a rational trier
of fact could conclude tended to connect the appellant to the offense for purposes
of Article 38.14’s corroboration requirement.” Casanova v. State, 383 S.W.3d
530, 538–39 (Tex. Crim. App. 2012).
34
Big Joe, Dieterich showed him the jewelry that appellant had given her to use as
payment; and Billy Chalfant confirmed that Dieterich informed him that she had
paid two men with jewelry to commit the murder on appellant’s behalf. Officers
recovered a ring, purchased by Bond from Garcia, one of the men whom Dieterich
had contacted, that witnesses positively identified as belonging to appellant.
In conducting an egregious harm analysis, we consider the charge, the
arguments of counsel, and any other pertinent matters in addition to the evidence.
See Pena v. State, 251 S.W.3d 601, 610–11 (Tex. App.—Houston [1st Dist.] 2007
pet. ref’d) (conducting egregious harm analysis when trial court failed give
accomplice-witness instruction). It is undisputed that this charge did not contain
an accomplice witness instruction. Although the State, during jury argument,
urged the jury to convict appellant of attempted capital murder under the law of
parties, due to Dieterich’s involvement as an intermediary, the State did not,
contrary to the situation in Pena, affirmatively state that Dieterich’s testimony did
not require corroboration. See id. at 611. Furthermore, also unlike the situation in
Pena, neither of the attorneys stated during voir dire that the jury could convict
appellant solely on the basis of the testimony of one witness, which could mislead
the jury into believing that corroboration was not required. See id. at 611–12.
Viewing the record in its entirety, we conclude that the corroborating nonaccomplice evidence was not “so unconvincing in fact as to render the State’s
35
overall case for conviction clearly and significantly less persuasive,” and,
therefore, appellant did not suffer egregious harm from the trial court’s failure to
instruct the jury that Dieterich was an accomplice witness as a matter of law with
respect to the attempted capital murder charge. See Casanova, 383 S.W.3d at 534;
Pena, 251 S.W.3d at 612.
We overrule appellant’s first issue.
C.
Failure to Instruct for Capital Murder Offense
Appellant contends that Dieterich was an accomplice as a matter of law with
respect to the capital murder offense because Dieterich testified that appellant
asked her to purchase a shower cap for her, and, after Dieterich did so and gave
appellant the shower cap, appellant stated that “she had all she needed now.”
Dieterich testified that appellant requested that she go to a particular H-E-B
store in Waco and purchase a shower cap for her. Although Dieterich thought that
this was a strange request, she complied.
After Dieterich gave appellant the
shower cap, appellant told her that “[s]he had all she needed now.” The only
indication of when this incident occurred is Dieterich’s testimony that it happened
at some point in time before Big Joe’s murder. There is no indication that a
shower cap was used during the murder. Appellant testified that she never asked
Dieterich to do anything for her or buy anything for her.
36
To be considered an accomplice, the individual “must have engaged in an
affirmative act that promotes the commission of the offense that the accused
committed.” Smith, 332 S.W.3d at 439. The person must have participated before,
during, or after the offense with the requisite culpable mental state. Id. Thus, for
Dieterich to be an accomplice to the capital murder offense, she must have
purchased the shower cap for appellant while intending or knowing that her actions
would assist in causing the death of Big Joe for remuneration or the promise of
remuneration.
See TEX. PENAL CODE ANN. § 19.02(b)(1) (providing culpable
mental state for murder); id. § 19.03(a)(3) (providing culpable mental state for
capital murder). The fact that Dieterich was complicit in another offense—the
attempted capital murder offense—does not necessarily render her an accomplice
to the charged offense of capital murder. See Druery, 225 S.W.3d at 498.
To be entitled to an instruction that a witness is an accomplice as a matter of
law, the evidence must clearly show that the witness is an accomplice. Smith, 332
S.W.3d at 439. Here, the testimony reflects that appellant asked Dieterich to
purchase a shower cap for her at some point in time before Big Joe was murdered
and Dieterich did so. Then, after she had purchased the shower cap and given it to
appellant, appellant stated that she “had all she needed now.”
There is no
indication that Dieterich knew when she purchased the shower cap that appellant
37
was planning to use it during the commission of the offense or that the shower cap
was actually used by appellant while committing the offense.
We conclude that the record does not support a conclusion that Dieterich’s
act of purchasing the shower cap for appellant was undertaken with the requisite
culpable mental state for capital murder, and, therefore, Dieterich was not an
accomplice with respect to the capital murder offense. We hold that the trial court
did not err in failing to instruct the jury that Dieterich was an accomplice as a
matter of law on this charge.
We overrule appellant’s sixth issue.
Court Costs
In her fourth issue, appellant contends that the trial court erred in taxing as
court costs fees for the attorneys pro tem and the State’s expert witnesses and
investigators. In her fifth issue, appellant contends that the trial court erred in
taxing as court costs fees for her court-appointed counsel and her expert witness
and investigator.
A.
Taxing as Court Costs Amounts Paid to Attorneys Pro Tem for State
and to State’s Experts
Code of Criminal Procedure article 2.07 provides that whenever an attorney
for the State is disqualified to act in a case, the trial court may appoint any
competent attorney to act as an attorney pro tem and “perform the duties of the
office during the . . . disqualification of the attorney for the state.” TEX. CODE
38
CRIM. PROC. ANN. art. 2.07(a) (Vernon 2005); see also id. art. 2.07(b-1) (“An
attorney for the state who is not disqualified to act may request the court to permit
him to recuse himself in a case for good cause and upon approval by the court is
disqualified.”). An attorney pro tem “shall receive compensation in the same
amount and manner as an attorney appointed to represent an indigent person.” Id.
art. 2.07(c).
The Court of Criminal Appeals has held that article 2.07(c)
incorporates the provisions of Code of Criminal Procedure article 26.05, relating to
court-appointed defense counsel, that govern the “amount and manner of
compensation.” See Busby v. State, 984 S.W.2d 627, 630 (Tex. Crim. App. 1998).
Article 26.05 includes provisions governing the services for which a courtappointed attorney may receive compensation and the creation of a fee schedule by
each county’s courts. See TEX. CODE CRIM. PROC. ANN. art. 26.05(a)–(c) (Vernon
Supp. 2012). Generally, unless the court finds that the defendant has the financial
resources to pay, all payments made pursuant to article 26.05 shall be paid from
the general fund of the county and “may be included as costs of court.” Id. art.
26.05(f).
In Busby, the Court of Criminal Appeals held that article 2.07(c) “does not
authorize inclusion of such payments [to the attorney pro tem] in the costs of
court.” 984 S.W.2d at 630. The court acknowledged that although article 26.05
“contains provisions for a county to recover payments from a defendant,” those
39
provisions “cannot be called amount and manner in which the attorney receives
compensation.” Id. at 630–31. The court also reasoned:
The public policy of having the defendant bear the cost of the defense
attorney is a familiar part of our legal system. A public policy of
having defendants reimburse the state for the costs of the prosecuting
attorney would be a novelty, one which we will not impute to the
legislature on such tenuous statutory language as that which the State
has presented.
Id. at 631. The court therefore concluded that if the legislature had intended to
authorize courts to require defendants to pay the fees of attorneys pro tem, “it
would do so more explicitly.” Id.
The State contends that because appellant failed either to object to the trial
court’s inclusion of the fees for the attorney pro tem and the State’s expert
witnesses and investigators as court costs or to move for a new trial on this basis,
appellant failed to preserve this complaint for appellate review. See TEX. R. APP.
P. 33.1(a)(1)(A) (generally requiring, to preserve error for appellate review, timely
request, objection, or motion stating ground for ruling sought from trial court with
sufficient specificity to make court aware of complaint).
In Busby, the Court of Criminal Appeals declined to consider any questions
regarding whether the defendant waived or failed to preserve his complaint that
attorney pro tem fees were not taxable as court costs. 984 S.W.2d at 628 n.3. The
Waco Court of Appeals, in addressing whether the defendant preserved the
complaint that the attorney pro tem lacked the authority to act for appellate review,
40
has held that article 2.07 sets out the procedural process for the appointment of an
attorney pro tem and that, “[i]f those procedures are not properly followed, the
defendant should object. Failure to do so, under Rule 33.1, forfeits the complaint
on appeal.” Marbut v. State, 76 S.W.3d 742, 750 (Tex. App.—Waco 2002, pet.
ref’d); see also Modica v. State, 151 S.W.3d 716, 721 (Tex. App.—Beaumont
2004, pet. ref’d) (“We find that the provisions of article 2.07(c) fall into that class
of Marin’s rules and procedures that are forfeited if not insisted upon by objection,
request, motion, or some other behavior calculated to call its lack of
implementation to the attention of the ‘system’s impartial representative, usually
the trial judge.’”) (quoting Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App.
1993)); Stephens v. State, 978 S.W.2d 728, 730 (Tex. App.—Austin 1998, pet.
ref’d) (holding that appellant’s failure to object to authority of attorney pro tem to
prosecute waived error).
In Modica, the Beaumont Court of Appeals, addressing whether the trial
court impermissibly enlarged the court costs “on an appeal from a municipal court
conviction of a ‘fine only’ citation offense,” held that “[t]he proper assessment of
court costs [is] neither a systemic requirement nor a waivable-only right.” 151
S.W.3d at 721–22. The court therefore concluded that, because the appellant had
“fail[ed] to call the trial court’s attention to any alleged improper court costs,” she
did not preserve that issue for appellate review. Id. at 722; see also Johnson v.
41
State, 365 S.W.3d 484, 490–91 (Tex. App.—Tyler 2012, no pet.) (holding that
objection was necessary to preserve complaint that trial court erred in requiring
appellant to reimburse Department of Public Safety for drug lab fee).
When, as here, the trial court states in its written judgment that it is taxing
particular fees as court costs, this alleged error becomes known when the trial court
signs the judgment, at which point the defendant has the opportunity to alert the
trial court of the error via a post-judgment motion. See Johnson, 365 S.W.3d at
491; see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“To
avoid forfeiting a complaint on appeal, the party must ‘let the trial judge know
what he wants, why he thinks he is entitled to it, and to do so clearly enough for
the judge to understand him at a time when the judge is in the proper position to do
something about it.’
This gives the trial judge and opposing counsel an
opportunity to correct the error.”) (quoting Lankston v. State, 827 S.W.2d 907, 909
(Tex. Crim. App. 1992) and citing Reyna v. State, 168 S.W.3d 173, 179 (Tex.
Crim. App. 2005)); Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002)
(“If a defendant wishes to complain about the appropriateness of (as opposed to the
factual basis for) a trial court’s restitution order, he must do so in the trial court,
and he must do so explicitly.”).
Here, appellant complains on appeal about the propriety of taxing the
attorney pro tem and the State’s expert and investigator fees as court costs against
42
her; she does not challenge the factual basis for or the sufficiency of the evidence
supporting the amount of fees taxed as costs. See Idowu, 73 S.W.3d at 921. The
trial court’s written judgment includes the following special finding:
The Court finds that the defendant has financial resources that enable
her to pay in whole the assessed costs. The Court assesses all court
appointed attorney’s fees, attorney pro tem fees, expert witness fees,
and investigator’s fees as costs in this cause and Orders the defendant
to pay the same.
The trial court assessed a total of $64,538.22 in court costs against appellant in the
judgment. Appellant did not file any post-judgment motions complaining to the
trial court that taxing of the attorney pro tem fees as court costs was improper.
We conclude that because appellant did not complain to the trial court that it
impermissibly taxed the attorney pro tem and State’s expert and investigator fees
as court costs, she has failed to preserve this complaint for appellate review. See
Modica, 151 S.W.3d at 722 (holding that “proper assessment of court costs are
neither a systemic requirement nor a waivable-only right”); see also Idowu, 73
S.W.3d at 921 (requiring defendant to explicitly object in trial court to
appropriateness of restitution order); Johnson, 365 S.W.3d at 490–91 (holding that
objection was required to preserve complaint that trial court erred in requiring
defendant to reimburse Department of Public Safety for drug lab fee).
We overrule appellant’s fourth issue.
43
B.
Taxing as Court Costs Amounts Paid to Court-Appointed Attorneys
and to Defense Experts
Court-appointed defense counsel is entitled to be paid a reasonable
attorney’s fee for performing certain statutorily enumerated services, such as “time
spent in court making an appearance on behalf of the defendant . . . .” TEX. CODE
CRIM. PROC. ANN. art. 26.05(a). Generally, all payments made under article 26.05
shall be paid from the county’s general fund. Id. art. 26.05(f). However, if the
trial court determines that the defendant has financial resources that enable her to
offset the cost of legal services provided, either in whole or in part, the court shall
order the defendant to pay “as court costs the amount that it finds the defendant is
able to pay.” Id. art. 26.05(g). “Thus the defendant’s financial resources and
ability to pay are explicit critical elements in the trial court’s determination of the
propriety of ordering reimbursement of costs and fees.” Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010). No objection is required in the trial
court to preserve for appellate review a complaint concerning the sufficiency of
evidence to support the determination that the defendant has financial resources
and is able to pay. Id.
Code of Criminal Procedure article 26.04(p) provides that “[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.” TEX. CODE CRIM. PROC. ANN. art.
44
26.04(p) (Vernon Supp. 2012); Mayer, 309 S.W.3d at 557. If the evidence does
not demonstrate a change in the defendant’s ability to pay fees subsequent to the
indigency determination, the trial court errs in including court-appointed attorney’s
fees and investigator’s fees in the court costs. Watkins v. State, 333 S.W.3d 771,
781–82 (Tex. App.—Waco 2010, pet. ref’d). “There must be some factual basis in
the record illustrating that an accused is capable of paying a legal fee levied under
[article] 26.05(g) of the Code of Criminal Procedure.” Barrera v. State, 291
S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see also Roberts v. State,
327 S.W.3d 880, 884 (Tex. App.—Beaumont 2010, no pet.) (holding same). We
must view the evidence in the light most favorable to the trial court’s finding. See
Mayer, 309 S.W.3d at 557.
Here, on April 20, 2011, the trial court held a hearing on appellant’s
indigency status.
Appellant and Little Joe were involved in civil litigation
concerning Big Joe’s death and the disposition of his assets. William Johnston,
Little Joe’s attorney, testified that the inventory filed in the administration of Big
Joe’s estate estimated the value of the estate at $513,150, with their homestead
appraised at $250,000, the property for Sturdivant Transmission at $120,000, and
the equipment and inventory of Sturdivant Transmission at $118,000. Johnston
stated that Sturdivant Transmission was continuing to operate under appellant’s
direction. He also acknowledged that all of the property listed in the inventory was
45
community property and that litigation was pending concerning the estate.
Specifically, he testified that Little Joe was seeking to impose a constructive trust
on Big Joe’s share of the property. Johnston stated that appellant had sold the
homestead and purchased a new home for $139,950. He also testified that, in a
deposition in August 2010, appellant estimated that Sturdivant Transmission was
worth around $325,000.
Appellant also received $92,000 in life insurance
proceeds, and, at the time of the deposition, she still had those proceeds in cash.
Little Joe testified that from October 2008 to January 2010, when he left
Strudivant Transmission, the net income of the business was approximately
$20,000 to $30,000 per month.
John Malone represented appellant in two civil lawsuits, including a lawsuit
concerning the sale of Sturdivant Transmission. Appellant had contracted to sell
the business for $275,000, but there was a title dispute with Little Joe over the real
property of the business. That suit was stayed pending the outcome of appellant’s
criminal trial, and Malone testified that while the cloud on the title existed
appellant was unable to do anything concerning the property. Malone also testified
that the Internal Revenue Service had filed a $133,000 tax lien against Big Joe,
which affected any property that he owned and “[made] the valu[ation] of the
business problematic.” Malone also disputed Little Joe’s estimation of the net
monthly income of Sturdivant Transmission, noting that appellant had testified in
46
her deposition that, since 2005, the business had generated so little monthly
income that she was afraid it would have to file for bankruptcy protection. Malone
also testified that Little Joe had purchased the new house for appellant, and,
although she had paid him back using the proceeds from the sale of the
homestead,8 title remained in Little Joe’s name, and, therefore, she could not
borrow against that house. Malone stated that appellant used the life insurance
proceeds that she received after big Joe’s death “for herself, for [Little] Joe and to
keep the business afloat.” Malone also stated that appellant had over $35,000 in
credit card debt, primarily due to allowing Little Joe to use Sturdivant
Transmission credit cards.
At the close of the hearing, the trial court stated,
And we’ve got the majority of the assets that are tied up in litigation.
You know, if someone wanted to waive their litigation, open up some
of these assets, I think I’d find that she’s not indigent, that she could
find the money. But I don’t see that happening. And then on top of
that, we do have a tax lien.
The court further stated that it had no “direct evidence that there’s cash sitting any
place,” and it noted that “all real estate business interests are tied up in civil
lawsuits.”
The court declared appellant indigent and appointed counsel to
represent her. In conclusion, the court stated:
8
Malone testified that net proceeds from the sale of this house were approximately
$230,000. He also stated that appellant spent over $20,000 in improvements to her
new house.
47
I do want the State’s attorney to recognize that any and all court
appointed attorney’s fees will be assessed as costs and those costs can
be recouped through normal proceedings. And so, once this matter is
concluded and the civil litigation is concluded, I would direct the
State’s attorney to—to use all efforts possible to collect these funds
that are going to be expended in the representation of Ms. Sturdivant
from any and all sources available. Because there are assets out there,
but they’re tied up at this point in time. She doesn’t have access to
them. And so, that leaves me with a dilemma and an unusual
dilemma that we don’t usually see here at the courthouse in cases.
But I do direct the State’s attorney to use all efforts possible to collect
any and all attorney’s fees to be paid in this matter.
In its final judgment, the trial court included the following special finding:
The Court finds that the defendant has financial resources that enable
her to pay in whole the assessed costs. The Court assesses all court
appointed attorney’s fees, attorney pro tem fees, expert witness fees,
and investigator’s fees as costs in this cause and Orders the defendant
to pay the same.
On appeal, appellant argues that “there was no evidence of a change in [her]
financial circumstances” such that she is required to pay her court-appointed
attorney’s fees.
At trial, Malone testified that the dispute concerning the title to the
Sturdivant Transmission property had been resolved. The trial court presiding over
that case had entered an agreed order that the deed granting title to Little Joe was
void and that “title was clear and the title to that property belonged to [appellant].”
Joe Tom Cuff, who had appellant’s power of attorney, testified that he currently
48
handles the business aspects of Sturdivant Transmission. He stated that the IRS
lien had been reduced to $22,000. 9
Considering the evidence that the balance of the IRS lien had been
significantly reduced and that title to the Sturdivant Transmission property was
now clear, such that appellant could, at the least, sell her interest in the business
and the property, we conclude that the record demonstrates a material change in
appellant’s financial circumstances and contains some evidence that she could pay
a fee imposed under article 26.05. See Mayer, 309 S.W.3d at 557; Watkins, 333
S.W.3d at 781–82; Roberts, 327 S.W.3d at 884; Barrera, 291 S.W.3d at 518. We
hold that the trial court did not err in requiring appellant to pay, as court costs, the
fees of her court-appointed attorneys.
We overrule appellant’s fifth issue.
9
On cross-examination, Cuff contradicted himself and testified that the IRS lien
was originally $1 million and had been reduced to $500,000 at the time of trial.
When considering whether the record contains evidence that the defendant’s
financial circumstances have materially changed, we view the evidence in the light
most favorable to the trial court’s finding. Mayer v. State, 309 S.W.3d 552, 557
(Tex. Crim. App. 2010).
49
Conclusion
We affirm the judgment of the trial court. All pending motions are denied as
moot.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
50
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