James Ross Heim III v. State

• Court: Court of Appeals of Texas
• Decided: August 27, 2019
• Docket: 06-19-00090-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-19-00090-CR

JAMES ROSS HEIM III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th District Court Marion County, Texas Trial Court No. F14970

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION A Marion County jury found John Ross Heim III guilty of indecency with a child 1 and

sentenced him to ten years’ imprisonment. In its written judgment, the trial court assessed Heim

$400.00 for court-appointed attorney fees.

On appeal, Heim (1) contends that insufficient evidence supported the trial court’s

assessment of $400.00 in court-appointed attorney fees and (2) urges this Court to reconsider

existing precedent on the sufficiency of child-victim testimony. Because we decline to reconsider

existing precedent, we affirm Heim’s conviction. That said, because we find that insufficient

evidence supported the assessment of court-appointed attorney fees, we modify the trial court’s

judgment to delete the assessment of attorney fees, and we affirm the trial court’s judgment, as

modified.

I. Child-Victim Testimony

In his second issue, Heim acknowledges that under existing precedent about the sufficiency

of child-victim testimony, the testimony of the child-victim here was sufficient to support his

conviction. Even so, Heim requests that we reconsider the San Antonio Court of Appeals’ holding

in Hiatt v. State that “[c]hild victims of sexual crimes are afforded great latitude when testifying

and they are not expected to testify with the same clarity and ability as is expected of a mature and

capable adult.” Hiatt v. State, 319 S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref’d)

(citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)); see also Allen v. State,

1 See TEX. PENAL CODE ANN. § 21.11(a)(1).

2 436 S.W.3d 815, 820 (Tex. App.—Texarkana 2014, pet. ref’d) (same). Heim argues a child

victim’s testimony should be held to a higher standard and should be supported by corroboration.

The Texas Court of Criminal Appeals in Villalon noted “[t]he important public policy that

we cannot expect the child victims of violent crimes to testify with the same clarity and ability as

is expected of mature and capable adults.” Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim.

App. 1990). As the court explained, “To expect such testimonial capabilities of children would be

to condone, if not encourage, the searching out of children to be the victims of crimes such as the

instant offense in order to evade successful prosecution.” Id. The Texas Legislature also has

determined that the uncorroborated testimony of a child victim alone is sufficient to support a

conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (Supp.).

Since we are bound by both Texas Court of Criminal Appeals precedent and the

constitutional enactments 2 of the Texas Legislature, we decline Heim’s request that we

“reconsider” this precedent. We therefore overrule Heim’s second issue.

II. Insufficient Evidence Supported the Assessment of Court-Appointed Attorney Fees

In his first issue, Heim complains that insufficient evidence supported the trial court’s

assessment of court-appointed attorney fees. The State concedes that the trial court erred and that

the judgment should be modified to delete the attorney fees assessment. We agree.

A trial court may assess court-appointed attorney fees only if “the court determines that a

defendant has financial resources that enable him to offset in part or in whole the costs of the legal

services provided, including any expenses and costs.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g)

2 Heim does not challenge the constitutionality of Article 38.07 of the Texas Code of Criminal Procedure. 3 (Supp.). “[T]he 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” of

legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App. 2011)

(quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).

Here, the trial court determined that Heim was indigent and appointed an attorney to

represent him at trial. A defendant who is found to be indigent “is presumed to remain indigent

for the remainder of the proceedings unless a material change in his financial circumstances occurs.

TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (Supp.). The record shows that Heim was indigent and

contains no determination or finding by the trial court that there was a material change in his

financial circumstances, or that he had the financial resources to pay the additional attorney fees.

It was thus error to assess $400.00 in attorney fees against Heim for his court-appointed attorney.

See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); Martin v. State, 405 S.W.3d 944,

946–47 (Tex. App.—Texarkana 2013, no pet.).

We “have the authority to reform judgments and affirm as modified in cases where there

is non-reversible error.” Ferguson v. State, 435 S.W.3d 291, 293 (Tex. App.—Waco 2014, pet.

struck) (comprehensively discussing appellate cases that have modified judgments). As a result,

we sustain Heim’s first issue and modify the trial court’s judgment.

4 III. Conclusion

For the reasons stated, we modify the trial court’s judgment by deleting the assessment of

$400.00 for attorney fees. We affirm the trial court’s judgment, as modified.

Scott E. Stevens Justice

Date Submitted: August 26, 2019 Date Decided: August 27, 2019

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