Jacob Adam Joseph Smith v. the State of Texas ( 2021 )


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  • Opinion filed June 10, 2021
    In The
    Eleventh Court of Appeals
    __________
    No. 11-19-00222-CR
    __________
    JACOB ADAM JOSEPH SMITH, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 142nd District Court
    Midland County, Texas
    Trial Court Cause No. CR50490
    OPINION
    The grand jury indicted Appellant, Jacob Adam Joseph Smith, for the second-
    degree felony offense of online solicitation of a minor whom he believed to be
    younger than fourteen years of age at the time of the commission of the offense. See
    TEX. PENAL CODE § 33.021(c), (f) (West 2016). The jury convicted Appellant of the
    charged offense and assessed his punishment at ten years’ imprisonment in the
    Institutional Division of the Texas Department of Criminal Justice and a $5,000 fine.
    Pursuant to the jury’s recommendation, Appellant’s sentence and fine were
    suspended. The trial court sentenced Appellant accordingly and placed Appellant
    on community supervision for a period of ten years.
    In four issues on appeal, Appellant asserts that (1) the evidence is insufficient
    to support his conviction, (2) the trial court erred when it overruled Appellant’s
    Confrontation Clause objection regarding Appellant’s videotaped interview, (3) the
    trial court erred when it refused to submit Appellant’s proposed jury instruction, and
    (4) it was error for the district clerk to assess court-appointed attorney’s fees and
    court reporter’s fees against Appellant, who had been adjudged indigent by the trial
    court. We modify and affirm.
    I. Factual Background
    During the summer of 2017, as part of a larger operation to combat crimes
    against children and human trafficking, state and federal law enforcement agents
    created an online post on Craigslist in which law enforcement officers posed as
    minors. The advertisement was posted in the “casual encounters” section in the
    “women for men” category.
    Law enforcement conducted the operation from an apartment in Midland;
    there, officers would chat online with people who responded to the post and who
    indicated that they were willing to have sexual contact with a minor. Appellant
    responded to the post on a Friday night around 10:00 p.m. and exchanged several
    text messages with Homeland Security Investigations Agent Daniel Yon, who was
    posing as a thirteen-year-old girl.
    During their text message conversation, Appellant asked, “How old are you?”
    Agent Yon responded, “[I’m] almost 14 but ppl say [I] look older.” A few messages
    2
    later, Appellant asked, “Do you wanna come over and ta’ll [sic] and drink maybe
    have sex? Just see where it goes.” Agent Yon responded, “I wanna get to meet u
    first.. lol” and subsequently asked, “ur ok with me being younger?” Appellant
    replied, “Yes I’m okay with it. But how old are you?” Agent Yon then texted, “[I]
    told u [I’m] almost 14 but ppl say I look older.” Finally, Appellant messaged, “Okay
    send me an address and I will swing by and pick you up.”
    Appellant and Agent Yon continued to exchange text messages and
    coordinated Appellant’s arrival at the apartment where law enforcement officers
    were waiting. Appellant arrived at around 11:00 p.m. Before entering the apartment,
    he texted once more, asking, “I’m at the door how do I know this isn’t a trap
    though?” He then entered the apartment and was immediately arrested. After
    Appellant was arrested, law enforcement officers sent another text message to the
    phone number that Agent Yon had been exchanging messages with. The text
    message confirmed that the phone number was associated with the phone in
    Appellant’s possession when he was arrested.
    Appellant was Mirandized1 and willingly and voluntarily spoke with two
    officers at the apartment—Agent Yon and Texas Ranger Cody Allen. Appellant
    denied receiving the first text message regarding the age of the minor that he
    intended to meet. Appellant stated that, after he received the second age-related text
    message, he was no longer interested in sexual contact and that he went to the
    apartment simply for some company. During the interview, Appellant gave Ranger
    Allen the passcode to unlock his phone and consented to Ranger Allen reading the
    saved text messages on the phone. Ranger Allen testified that, although he reviewed
    the text message string conversation on Appellant’s phone between Appellant and
    1
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    3
    Agent Yon, he did not see the first message that mentioned the age of the minor that
    Appellant had arranged to meet.
    At trial, the State offered the recording of the videotaped interview between
    Appellant, Agent Yon, and Ranger Allen into evidence. Appellant’s trial counsel
    raised a Confrontation Clause objection to the recording on the basis that the
    recording contained statements made by Agent Yon, who, prior to trial, had been
    transferred to another state and was unavailable to testify. After a bench conference
    outside the presence of the jury, the trial court admitted the recording on the basis
    that Agent Yon’s statements provided “context” to the statements Appellant had
    made during the interview. The State also redacted the audio of any portion of the
    videotaped interview in which Ranger Allen was not present.                Prior to the
    recording’s publication to the jury, the trial court instructed the jury that any
    statements made by Agent Yon were not to be considered for the truth of the matter
    asserted but could only be considered to show context or background information
    for the statements Appellant made during the recording. Appellant’s trial counsel
    requested that the trial court include a similar instruction in its charge, but the trial
    court refused. The jury convicted Appellant of the charged offense, and this appeal
    followed.
    II. Analysis
    A. Sufficiency of the Evidence
    In his first issue, Appellant contends that the evidence is insufficient to
    support his conviction for the charged offense. Specifically, Appellant asserts that
    the State was unable to prove that he received the first text message from Agent Yon
    stating that his potential victim was thirteen years old. According to Appellant, this
    lack of receipt shows that, at the time he sent the text message whereby he offered
    4
    to have sexual contact with the minor, he did not know that he had communicated
    with a minor. Appellant also contends that the evidence is insufficient to show that
    he had the specific intent to engage in sexual contact with a minor younger than
    fourteen because, in addition to not knowing that the recipient of his text messages
    was only thirteen, his text message stated, “maybe have sex.” Appellant contends
    that this qualification of “maybe” rendered the message insufficient, standing alone,
    to prove the required specific intent.
    The State concedes that it could neither prove nor disprove that Appellant
    received the first age-related text message; however, the State asserts that, even if
    Appellant had not received the first age-related text message, it is undisputed that he
    received the second age-related text message. Further, the State argues that the
    circumstantial evidence surrounding Appellant’s online interactions with Agent Yon
    are sufficient to support his conviction for the charged offense of online solicitation
    of a minor child under the age of fourteen. We agree with the State.
    We review a challenge to the sufficiency of the evidence, regardless of
    whether it is denominated as a legal or factual sufficiency challenge, under the
    standard set forth in Jackson v. Virginia, 
    443 U.S. 307
     (1979). Brooks v. State, 
    323 S.W.3d 893
    , 912 (Tex. Crim. App. 2010); Polk v. State, 
    337 S.W.3d 286
    , 288–89
    (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
    of the evidence in the light most favorable to the verdict to determine whether any
    rational trier of fact could have found the essential elements of the charged offense
    beyond a reasonable doubt. Jackson, 
    443 U.S. at 319
    ; Isassi v. State, 
    330 S.W.3d 633
    , 638 (Tex. Crim. App. 2010).
    When conducting a sufficiency review, we consider all of the evidence
    admitted at trial, including improperly admitted evidence, and defer to the
    5
    factfinder’s role as the sole judge of the witnesses’ credibility and the weight their
    testimony is to be afforded. Winfrey v. State, 
    393 S.W.3d 763
    , 767–68 (Tex. Crim.
    App. 2013); Brooks, 
    323 S.W.3d at 899
    ; Clayton v. State, 
    235 S.W.3d 722
    , 778 (Tex.
    Crim. App. 2007). This deference accounts for the factfinder’s duty to resolve
    conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
    from basic facts to ultimate facts. Jackson, 
    443 U.S. at 319
    ; Clayton, 235 S.W.3d at
    778. We may not reevaluate the weight and credibility of the evidence to substitute
    our judgment for that of the factfinder. Dewberry v. State, 
    4 S.W.3d 735
    , 740 (Tex.
    Crim. App. 1999). Therefore, if the record supports conflicting inferences, we
    presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
    to that determination. Jackson, 
    443 U.S. at 326
    ; Merritt v. State, 
    368 S.W.3d 516
    ,
    525–26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
    Because the standard of review is the same, we treat direct and circumstantial
    evidence equally. Isassi, 
    330 S.W.3d at 638
    ; Clayton, 235 S.W.3d at 778; Hooper v.
    State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007). Circumstantial evidence is as
    probative as direct evidence in establishing the guilt of an actor and can, without
    more, be sufficient to establish his guilt. Carrizales v. State, 
    414 S.W.3d 737
    , 742
    (Tex. Crim. App. 2013) (citing Hooper, 
    214 S.W.3d at 13
    ). A guilty verdict does
    not require that every fact must directly and independently prove a defendant’s guilt.
    Hooper, 
    214 S.W.3d at 13
    . Instead, the cumulative force of all incriminating
    circumstances is sufficient to support the conviction. 
    Id.
     Therefore, in evaluating
    the sufficiency of the evidence, we must consider the cumulative force of all the
    evidence. Villa v. State, 
    514 S.W.3d 227
    , 232 (Tex. Crim. App. 2017); Murray v.
    State, 
    457 S.W.3d 446
    , 448 (Tex. Crim. App. 2015).
    6
    A person commits the offense of online solicitation of a minor:
    [I]f the person, over the Internet, by electronic mail or text message or
    other electronic message service or system, or through a commercial
    online service, knowingly solicits a minor to meet another person,
    including the actor, with the intent that the minor will engage in sexual
    contact, sexual intercourse, or deviate sexual intercourse with the actor
    or another person.
    PENAL § 33.021(c). The term “minor” includes “an individual whom the actor
    believes to be younger than 17 years of age.” Id. § 33.021(a)(1)(B).
    The gravamen of the offense of online solicitation of a minor under
    subsection (c) is the knowing solicitation of a minor to meet a person, with the intent
    that the minor will engage in some form of sexual contact with that person or
    another. Ganung v. State, 
    502 S.W.3d 825
    , 828–29 (Tex. App.—Beaumont 2016,
    no pet.). The act of “soliciting” is the prohibited conduct. Ex parte Zavala, 
    421 S.W.3d 227
    , 232 (Tex. App.— San Antonio 2013, pet. ref’d). The offense is
    completed at the time of the solicitation, and the requisite intent arises within the
    conduct of soliciting. Ganung, 502 S.W.3d at 828 (citing Ex parte Lo, 
    424 S.W.3d 10
    , 22–23 (Tex. Crim. App. 2013)); see PENAL § 33.021(c). In this case, the
    indictment alleged that Appellant knowingly solicited Agent Yon online with the
    intent that Agent Yon would meet with and would engage in sexual contact with
    Appellant and that Appellant believed that Agent Yon was a person younger than
    fourteen years of age at the time. With respect to the applicable mental state for this
    offense, a person acts knowingly, or with knowledge, with respect to the nature of
    his conduct or to circumstances surrounding his conduct when he is aware of the
    nature of his conduct or that the circumstances exist. PENAL § 6.03(b) (West 2021).
    Even assuming that Appellant did not receive the first age-related text
    message, his assertion that the jury could not infer his specific intent to have sexual
    7
    contact with a minor simply because he sent the sex-related text message before he
    became aware of the recipient’s age is flawed and misses the mark. Similarly,
    Appellant’s bare qualification in his text message of “maybe” having sexual contact
    does not negate the other circumstantial evidence that supports the jury’s inferences,
    as reflected in the verdict, that he had the requisite intent to commit the offense.
    Appellant initiated the online contact between himself and Agent Yon by
    responding to the Craigslist advertisement, which was posted in the “casual
    encounters” section in the “women for men” category.            It is undisputed that
    Appellant received at least one text message in which he was informed (and which
    he immediately acknowledged) that he was chatting with a thirteen-year-old girl.
    Appellant explicitly indicated his interest to engage in sexual contact with the minor:
    “Do you wanna come over and ta’ll [sic] and drink maybe have sex? Just see where
    it goes.” Although Appellant contends that he sent this text message before knowing
    the age of the person with whom he was chatting and that, after he became aware of
    her age, he no longer considered having sexual contact with her, he never disclaimed
    sending his initial message that indicated his interest in sexual contact, nor did he
    express any other hesitation or concern after he learned the age of the person with
    whom he was chatting.
    The circumstances of this interaction support the jury’s inference that
    Appellant had the specific intent to have sexual contact with a minor under the age
    of fourteen. See Carrizales, 414 S.W.3d at 742 (citing Hooper, 
    214 S.W.3d at 13
    ).
    The evidence showed that Appellant responded to a post in the casual encounters
    section of Craigslist late on a Friday night, suggested an interest in sexual contact
    during his text message string conversation with Agent Yon, and indicated no
    concern or protest after he became aware that the other participant who was involved
    8
    in the text conversation was only thirteen years old. Finally, Appellant later arrived
    at the location where he believed the minor would be and texted, “[H]ow do I know
    this isn’t a trap?” Here, the jury was permitted to use its common sense in evaluating
    these circumstances and inferring their significance. See Maloney v. State, 
    294 S.W.3d 613
    , 621 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (A jury may use
    its common sense and apply its common knowledge, observations, and ordinary life
    experience when giving effect to the inferences that may reasonably be drawn from
    the evidence.); Aguilar v. State, 
    263 S.W.3d 430
    , 434 (Tex. App.—Houston [1st
    Dist.] 2008, pet. ref’d) (citing Taylor v. State, 
    71 S.W.3d 792
    , 795 (Tex. App.—
    Texarkana 2002, pet. ref’d)).
    Appellant further asserts that knowing solicitation did not occur because,
    according to him, he never received the first age-related text message. However,
    this contention, even if true, does not excuse the fact that, after he became aware of
    “her” age, Appellant never retracted his solicitation for sexual contact with “her.”
    In fact, Appellant continued to interact with Agent Yon and showed no indication
    that his knowledge of the other person’s age had changed either his interest to engage
    in sexual contact with “her” or the sexual nature of their exchange in any manner
    whatsoever. See Maloney, 
    294 S.W.3d at 621
    ; Aguilar, 
    263 S.W.3d at 434
    .
    In this case, Appellant’s contentions do not fatally undermine the verdict but,
    rather, offer only a competing interpretation of the evidence. It is the jury’s duty to
    resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
    inferences from basic facts to ultimate facts. We presume that the jury resolved any
    conflicting inferences in favor of the verdict, and we defer to that determination.
    Jackson, 
    443 U.S. at 326
    ; Merritt, 368 S.W.3d at 525–26; Clayton, 235 S.W.3d at
    778. Moreover, it is not our role or function to engage in or make credibility
    9
    determinations. Jackson, 
    443 U.S. at 326
    ; Merritt, 368 S.W.3d at 525–26; Clayton,
    235 S.W.3d at 778.
    Consistent with the applicable standard of review, we have reviewed the
    evidence in the light most favorable to the jury’s verdict. Irrespective of Appellant’s
    claim (with which we disagree) that there is no evidence that he had the specific
    intent to commit the charged offense, we agree with the State and hold that the record
    before us contains sufficient evidence from which a rational jury could have
    logically inferred and found beyond a reasonable doubt that Appellant was guilty of
    the offense of online solicitation of a minor as charged in the indictment.
    Accordingly, because sufficient evidence supports the jury’s verdict, we overrule
    Appellant’s first issue.
    B. Confrontation Clause Challenge
    In his second issue, Appellant contends that the trial court erred when it
    admitted, over Appellant’s objection, certain statements made by Agent Yon during
    Appellant’s videotaped interview, specifically: “That’s not what the text said, you
    knew she was thirteen, I have that text”; “You came back and asked for sex”;
    and “the opportunity presented itself and maybe you took advantage of it.”
    Appellant’s trial counsel objected and argued that the admission of Agent Yon’s
    statements violated Appellant’s rights under the Confrontation Clause and that,
    therefore, the videotaped interview should not have been admitted. The State asserts
    that the statements were offered solely to provide the “context”2 of
    2
    There are generally two categories of “contextual” evidence: (1) same transaction contextual
    evidence, which refers to other offenses connected with the primary offense, and (2) background contextual
    evidence, which includes all general background evidence and may be admissible to assist the jury in
    understanding certain disputed issues. See Mayes v. State, 
    816 S.W.2d 79
    , 86–87 (Tex. Crim. App. 1991).
    Background contextual evidence “fill[s] in the background of the narrative and give[s] it interest, color, and
    lifelikeness.” 
    Id. at 87
    .
    10
    Appellant’s interview responses, not for the truth of the matter asserted, and were
    therefore not hearsay and did not implicate the Confrontation Clause.
    Generally, we review a trial court’s decision to admit or exclude evidence for
    an abuse of discretion. Rhomer v. State, 
    569 S.W.3d 664
    , 669 (Tex. Crim. App.
    2019); Wall v. State, 
    184 S.W.3d 730
    , 743 (Tex. Crim. App. 2006); Render v. State,
    
    347 S.W.3d 905
    , 917 (Tex. App.— Eastland 2011, pet. ref’d). However, when we
    review a Confrontation Clause objection, we review the trial court’s constitutional
    legal ruling de novo. Woodall v. State, 
    336 S.W.3d 634
    , 642 (Tex. Crim. App.
    2011); Wall, 
    184 S.W.3d at
    742–43; Render, 
    347 S.W.3d at 917
    .
    The Sixth Amendment to the United States Constitution provides, in relevant
    part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
    confronted with the witnesses against him.”          U.S. CONST. amend. VI.         The
    Confrontation Clause bars the admission of out-of-court testimonial statements of a
    witness unless (1) the witness is unavailable to testify and (2) the defendant had a
    prior opportunity to cross-examine the witness. See Nicholls v. State, No. 11-19-
    00120-CR, 
    2021 WL 1034047
    , at *3 (Tex. App.—Eastland Mar. 18, 2021, no pet.
    h.); see also Crawford v. Washington, 
    541 U.S. 36
    , 53–54 (2004); Render, 
    347 S.W.3d at 917
    .
    The principal concern of the Confrontation Clause is to ensure the reliability
    of the evidence against a criminal defendant by subjecting it to rigorous testing in
    the context of an adversarial proceeding before the trier of fact. Nicholls, 
    2021 WL 1034047
    , at *3 (citing Maryland v. Craig, 
    497 U.S. 836
    , 845 (1990)). Whether a
    statement is admissible under the Rules of Evidence and whether that same statement
    is admissible under the Confrontation Clause are separate questions. 
    Id.
     (citing Wall,
    
    184 S.W.3d at
    734–35). Thus, even when a statement offered against a defendant is
    11
    admissible under the Rules of Evidence, the statement may nonetheless implicate
    the protections of the Confrontation Clause. See 
    id.
     (citing Crawford, 
    541 U.S. at
    50–51); see also Gonzalez v. State, 
    195 S.W.3d 114
    , 116 (Tex. Crim. App. 2006);
    Walker v. State, 
    406 S.W.3d 590
    , 596 (Tex. App.—Eastland 2013, pet. ref’d). To
    implicate the Confrontation Clause, an out-of-court statement must (1) have been
    made by a witness absent from trial and (2) be testimonial in nature. See Nicholls,
    
    2021 WL 1034047
    , at *3 (citing Woodall, 
    336 S.W.3d at 642
    ).
    “Post-Crawford, the threshold question in any Confrontation Clause analysis
    is whether the statements at issue are testimonial or nontestimonial in nature.”
    Render, 
    347 S.W.3d at 917
    ; Wells v. State, 
    241 S.W.3d 172
    , 175 (Tex. App.—
    Eastland 2007, pet. ref’d). An out-of-court statement may be testimonial when the
    surrounding circumstances objectively indicate that the primary reason the statement
    was made was to establish or prove past events that would be potentially relevant to
    a later criminal prosecution. Davis v. Washington, 
    547 U.S. 813
    , 822–23 (2006).
    Consequently, statements are testimonial if the statements are made under
    circumstances that would lead an objective witness to reasonably believe that the
    statements would be available for use at a later trial. Langham v. State, 
    305 S.W.3d 568
    , 576 (Tex. Crim. App. 2010) (citing Wall, 
    184 S.W.3d at
    735–36); Walter v.
    State, 
    581 S.W.3d 957
    , 981 (Tex. App.—Eastland 2019, pet. ref’d).
    It is undisputed that Agent Yon was absent from trial and that the challenged
    statements made by him are testimonial. However, it is well established that
    testimonial statements that are offered for purposes other than to establish the truth
    of the matter asserted do not implicate the Confrontation Clause. Tennessee v.
    Street, 
    471 U.S. 409
    , 414 (1985); see also Langham, 
    305 S.W.3d at
    576 (citing
    Crawford, 
    541 U.S. at
    59 n.9); Del Carmen Hernandez v. State, 
    273 S.W.3d 685
    ,
    12
    687–88 (Tex. Crim. App. 2008). Nevertheless, courts that have addressed this
    confrontation exception have cautioned prosecutors not to invoke it too broadly, due
    to the inherent danger of such a practice becoming merely a “pretense for insulating
    out-of-court assertions from the crucible of confrontation and cross-examination.”
    Langham, 
    305 S.W.3d at
    577–78 & n.30. Even when a background out-of-court
    statement “is not offered for the truth of the matter asserted, its probative value to
    place other, more direct evidence in an understandable context will usually be slight
    compared to its tendency to cause the jury to consider it for that improper, truth-of-
    the-matter-asserted purpose.” 
    Id. at 580
    . Consequently, the more substantive and
    detailed the “background” out-of-court statement may be, the greater the likelihood
    that the jury will “gravitate toward the [statement’s] improper use.” 
    Id.
    The State cites to and relies on Kirk v. State for the proposition that statements
    made by police officers during an interview are not hearsay if they are offered only
    to provide context to the interviewee’s replies. See Kirk v. State, 
    199 S.W.3d 467
    ,
    478–79 (Tex. App.—Fort Worth 2006, pet. ref’d); see also In re Bexar Cty. Criminal
    Dist. Attorney’s Office, 
    224 S.W.3d 182
    , 188–89 (Tex. 2007) (statements offered
    only to show their effect on the listener are not hearsay); Young v. State, 
    10 S.W.3d 705
    , 712 (Tex. App.—Texarkana 1999, pet. ref’d). However, the State’s emphasis
    on and characterization of Agent Yon’s statements as being merely hearsay ignores
    the focus of Appellant’s second issue on appeal. As we have said, the admissibility
    of testimony under the Rules of Evidence is a separate inquiry from that of the
    admissibility of the same testimony under the Confrontation Clause. See Nicholls,
    
    2021 WL 1034047
    , at *3 (citing Crawford, 
    541 U.S. at
    50–51); see also Gonzalez,
    
    195 S.W.3d at 116
    ; Walker, 406 S.W.3d at 596.
    13
    Because Agent Yon’s challenged statements are testimonial, and because he
    was absent from trial, his statements would generally implicate the protections of
    the Confrontation Clause. See Nicholls, 
    2021 WL 1034047
    , at *3 (citing Woodall,
    
    336 S.W.3d at 642
    ). Having considered the substance of Agent Yon’s challenged
    testimonial statements and the specific purpose in which these statements were
    offered by the State and admitted by the trial court, that is to show context, we
    conclude that Agent Yon’s statements do not provide the necessary background
    context and cannot be construed as such. 3                    Therefore, given that Appellant’s
    confrontation rights were implicated, the trial court should not have admitted these
    statements on that basis. In light of our determination of this issue, we are mindful
    of the Langham court’s warning that the background context exception should not
    be applied broadly in these circumstances. See Langham, 
    305 S.W.3d at
    577–78
    & n.30.      Consequently, for the reasons discussed below, and based on the
    circumstances presented in this case, we hold that the probative value, if any, of
    Agent Yon’s testimonial statements that purportedly placed Appellant’s interview
    responses into “context” was too slight in comparison to the likelihood that the jury
    would have “gravitate[d] toward the [statements’] improper use.” 
    Id.
     at 577 n.30,
    580; see Hereford v. State, 
    444 S.W.3d 346
    , 352–53 (Tex. App.—Amarillo 2014,
    no pet.) (out-of-court statements made by police in interview of defendant did not
    3
    Generally, it is permissible for a law enforcement officer to express hearsay statements for the
    limited purpose of explaining to the jury the reasons why the officer took specific actions and proceeded to
    investigate a matter in a certain manner. See Langham, 
    305 S.W.3d at 577, 580
    ; Tienda v. State, 
    479 S.W.3d 863
    , 879–80 (Tex. App.—Eastland 2015, no pet.). In such circumstances, the trial court would not err if it
    allowed the officer to testify that the officer acted accordingly based on the officer’s reliance on certain
    generalized statements that were communicated to the officer by others. See Langham, 
    305 S.W.3d at 580
    ;
    Tienda, 479 S.W.3d at 879–80. However, such a proffer was not made by the State in this case. Rather,
    the State strategically offered Agent Yon’s testimonial statements solely to show background “context,”
    and the trial court admitted these statements on that basis.
    14
    qualify as mere background information given their detailed and “damning” nature)
    (quoting Langham, 
    305 S.W.3d at 580
    ).
    Faced with similar situations, some of our sister courts have upheld the
    admission of out-of-court statements that otherwise would have implicated the
    Confrontation Clause because the statements were not offered for the truth of the
    matter asserted and provided the necessary context to the defendant’s interview
    responses. However, in these cases, the courts typically admitted the complained-
    of statements because they were necessary to explain the effect of the
    defendant’s responses in a coherent manner. See Mendez v. State, No. 08-17-00076-
    CR, 
    2019 WL 1649379
    , at *18 (Tex. App.—El Paso Apr. 17, 2019, pet. ref’d) (mem.
    op., not designated for publication) (out-of-court statement referenced by police in
    the defendant’s interview was not offered to prove the truth of the matter asserted
    but to provide context to defendant’s responses, and redaction of the references
    would have rendered defendant’s responses nonsensical and incoherent); McNeil v.
    State, 
    452 S.W.3d 408
    , 419 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)
    (statements by police interviewers were not offered for the truth of the matter
    asserted but were designed to prod defendant into providing more accurate
    information to explain inconsistencies between his version of events and the victim’s
    injuries); Hernandez v. State, No. 01-08-00306-CR, 
    2009 WL 1331649
    , at *6 (Tex.
    App.—Houston [1st Dist.] May 14, 2009, pet. ref’d) (mem. op., not designated for
    publication) (redaction of references to out-of-court statement would have rendered
    defendant’s interview responses incoherent, and were properly offered to provide
    context to the interview and to show the effect of out-of-court statement on the
    defendant); see also Kirk, 
    199 S.W.3d at
    478–79 (out-of-court statement offered to
    give context to defendant’s replies during police interview was not hearsay, and
    15
    redaction of statements would have rendered interview incoherent).               Such
    circumstances do not exist here.
    For example, in Hernandez, the defendant’s trial counsel objected on hearsay
    and confrontation grounds to the admission of a videotaped interview of the
    defendant in which law enforcement officers referenced statements that were made
    to them by an unnamed witness. Hernandez, 
    2009 WL 1331649
    , at *6. The
    unnamed witness was not available to testify at trial. 
    Id.
     In that case, the background
    context that the out-of-court statements provided to the jury was necessary to render
    the defendant’s responses coherent because several of the defendant’s responses
    were either nonverbal or simple expressions of assent or denial. Id. at *7.
    We have carefully reviewed the videotaped interview between Appellant,
    Agent Yon, and Ranger Allen. Agent Yon’s challenged testimonial statements did
    little, if anything, to provide either any background context to or improve the
    coherency of Appellant’s responses. Unlike Hernandez and the other cases cited
    above, Appellant’s responses in the interview were detailed and self-explanatory.
    Appellant calmly stated he did not have any knowledge of the first age-related text
    message, and he explained his version of events—that he did not know the age of
    the person that he had texted until after he had suggested having sexual contact with
    her and that, after he became aware of her age in the second age-related text message,
    sexual contact was no longer a consideration. Because Appellant’s explanation was
    coherent and unambiguous, the need for additional background context information
    did not exist.
    Although the State attempts to save the admission of Agent Yon’s challenged
    statements through its reliance on the background-context exception, these
    statements do not provide any necessary background context that could have assisted
    16
    the jury in understanding the crux of Appellant’s interview responses. Rather, the
    statements merely advanced the State’s theory of the case: that Appellant knowingly
    solicited a minor for sexual contact online. Under these circumstances, where
    Appellant provided his own detailed version of events, Agent Yon’s statements, such
    as “you knew she was thirteen” and “the opportunity presented itself and maybe you
    took advantage of it,” can hardly be characterized as merely background contextual
    evidence. Further, the State cannot disguise hearsay or testimonial statements as
    background “context” and then later offer the same statements for an improper
    purpose. See Langham, 
    305 S.W.3d at
    577–78. Because Agent Yon’s challenged
    statements were testimonial and exceeded the permissible scope and purpose of
    presenting legitimate background context, the admission of these statements violated
    Appellant’s confrontation rights. Thus, the trial court erred when it admitted these
    statements on the stated basis of background context.
    Appellant next contends that the erroneous admission of Agent Yon’s
    challenged statements justifies a reversal of his conviction. Constitutional error will
    result in a reversal of a conviction unless we determine beyond a reasonable doubt
    that the error did not contribute to Appellant’s conviction or punishment. See
    Langham, 
    305 S.W.3d at 582
    ; see also TEX. R. APP. P. 44.2(a). Our analysis does
    not turn on whether the jury’s verdict is supported by the evidence; rather, we must
    determine whether the error adversely affected the integrity of the process that led
    to Appellant’s conviction. Langham, 
    305 S.W.3d at 582
    . As such, the admission of
    evidence in violation of the Confrontation Clause will result in a reversal if there is
    a reasonable possibility that, in the context of the entire trial, the error “moved the
    jury from a state of non-persuasion to one of persuasion on a particular issue.”
    17
    Id.; see Scott v. State, 
    227 S.W.3d 670
    , 690–91 (Tex. Crim. App. 2007); Wesbrook v.
    State, 
    29 S.W.3d 103
    , 119 (Tex. Crim. App. 2000).
    We consider several nonexclusive factors when we determine whether the
    error contributed to the jury’s deliberations and verdict. Those factors include:
    (1) the importance of the statements to the State’s case; (2) whether the statements
    are cumulative of other evidence; (3) the presence or absence of evidence
    corroborating or contradicting the out-of-court statement on material points; (4) the
    overall strength of the prosecution’s case; (5) the source and nature of the error;
    (6) the extent to which the error was emphasized by the State; and (7) the weight the
    jury may have assigned the inadmissible statement. Snowden v. State, 
    353 S.W.3d 815
    , 822 (Tex. Crim. App. 2011); Langham, 
    305 S.W.3d at
    582 (citing Scott, 
    227 S.W.3d at
    690–91); Hereford, 444 S.W.3d at 353. An analysis of whether a
    particular constitutional error is harmless “should take into account any and every
    circumstance apparent in the record that logically informs an appellate determination
    whether ‘beyond a reasonable doubt [that particular] error did not contribute to the
    conviction or punishment.’” Snowden, 353 S.W.3d at 822 (alteration in original)
    (quoting TEX. R. APP. P. 44.2(a)). Although we do not focus on whether the jury
    verdict was supported by the evidence, the presence of “overwhelming evidence of
    guilt is a factor to be considered.” Motilla v. State, 
    78 S.W.3d 352
    , 357 (Tex. Crim.
    App. 2002); see Langham, 
    305 S.W.3d at 582
    .
    Agent Yon’s statements were of minimal importance to the State’s case. In
    fact, the State adduced an abundance of direct evidence that linked Appellant to the
    charged offense, including the chat log, which showed the entirety of Appellant’s
    text string conversation with Agent Yon. The chat log further showed that Appellant
    was interested in sexual contact, that he was aware that the recipient of his text
    18
    messages was thirteen years old, and that he made no attempt to disclaim his sexual
    proposition after he learned of “her” age. The State also adduced evidence that
    Appellant initiated the online contact between himself and Agent Yon when he
    responded to the Craigslist advertisement, which was posted in the “casual
    encounters” section in the “women for men” category.
    Agent Yon’s statements were also cumulative of other admitted
    evidence, such as the chat log and the Craigslist advertisement. Moreover, Agent
    Yon’s statements are corroborated by certain statements that Appellant made during
    the videotaped interview. In fact, during the interview, Appellant candidly admitted
    that he believed the person with whom he had texted was thirteen years old. The
    chat log and the messages contained on Appellant’s phone further corroborate
    Appellant’s admissions. Therefore, even though the dispute over whether Appellant
    had received the first age-related text message is the primary focus of Appellant’s
    complaint that Agent Yon’s challenged statements (“you knew she was thirteen,”
    and “you came back and asked for sex”) were improperly admitted, the chat log, the
    messages located on Appellant’s phone, and Appellant’s own admissions all
    independently established that Appellant knew that the person he had texted was
    thirteen and that he had solicited “her” for sex.
    As we have discussed, the State presented an abundance of evidence of
    Appellant’s guilt. Furthermore, the State did not emphasize Agent Yon’s challenged
    statements during its case in chief or during its opening or closing arguments.
    Finally, the trial court twice admonished and instructed the jury to only consider
    Agent Yon’s statements as “context” for Appellant’s responses and not for the truth
    of the matters asserted in the challenged statements. Assuming, without deciding,
    that the jury even considered this evidence for any purpose in determining
    19
    Appellant’s guilt or punishment, it is presumed that the jury follows the instructions
    of the trial court regarding the consideration of evidence. Therefore, any potential
    harm to Appellant, if any, would be further mitigated by the trial court’s limiting
    instructions. See Archie v. State, 
    340 S.W.3d 734
    , 741 (Tex. Crim. App. 2011);
    Williams v. State, 
    937 S.W.2d 479
    , 490 (Tex. Crim. App. 1996).
    We have thoroughly reviewed the record before us and the factors stated
    above, and we are satisfied beyond a reasonable doubt that the admission of Agent
    Yon’s challenged statements neither contributed to Appellant’s conviction or
    punishment (he received a probated sentence) nor affected the integrity of the
    process. As such, the trial court did not commit reversible error when it admitted
    this evidence. Accordingly, we overrule Appellant’s second issue.
    C. Limiting Instructions
    In his third issue, Appellant contends, and the State essentially concedes, that
    the trial court erred when it refused to include in its charge Appellant’s proposed
    jury instruction regarding Agent Yon’s challenged statements.
    Jury charge error is subject to a harmless-error analysis. See Barron v. State,
    
    353 S.W.3d 879
    , 883 (Tex. Crim. App. 2011). Because Appellant lodged a timely
    objection to the alleged charge error, we will reverse the trial court’s judgment if
    there is a showing of “some harm” to Appellant. Mendez v. State, 
    545 S.W.3d 548
    ,
    552 (Tex. Crim. App. 2018) (citing Almanza v. State, 
    686 S.W.2d 157
    , 171 (Tex.
    Crim. App. 1985)). “Some” harm means “any harm, regardless of degree.” Arline v.
    State, 
    721 S.W.2d 348
    , 351 (Tex. Crim. App. 1986). Nevertheless, the harm suffered
    must constitute actual, rather than theoretical, harm. Chambers v. State, 
    580 S.W.3d 149
    , 154 (Tex. Crim. App. 2019); Reeves v. State, 
    420 S.W.3d 812
    , 816 (Tex. Crim.
    App. 2013).
    20
    Limiting instructions are governed by Rule 105 of the Texas Rules of
    Evidence, which provides that, “[i]f the court admits evidence that is admissible
    against a party or for a purpose—but not against another party or for another
    purpose—the court, on request, must restrict the evidence to its proper scope and
    instruct the jury accordingly.” TEX. R. EVID. 105(a). Thus, a limiting instruction
    complies with Rule 105 where it restricts the jury’s use of certain evidence so that it
    is considered only for its limited purpose. See Walker v. State, 
    300 S.W.3d 836
    , 851
    (Tex. App.—Fort Worth 2009, pet. ref’d).
    Generally, jury instructions should be given at the time that the evidence is
    admitted and should also be included in the trial court’s charge. See Hammock v.
    State, 
    46 S.W.3d 889
    , 895 (Tex. Crim. App. 2001); see also TEX. CODE CRIM. PROC.
    ANN. art. 36.14 (West 2007). Despite the requirement that the trial court should
    provide an additional limiting instruction in its charge to the jury, essentially as a
    reminder of its earlier oral instruction, juries are presumed to follow the trial court’s
    instructions. See Archie, 
    340 S.W.3d at 741
    ; Williams, 937 S.W.2d at 490. As we
    have said, the trial court twice admonished the jury during the trial that Agent Yon’s
    statements could only be considered as context for Appellant’s responses and not for
    the truth of the matters asserted in them. Therefore, it can be presumed that the jury
    complied with the trial court’s instructions and considered Agent Yon’s statements
    only for the purpose to which it was instructed, if it considered the evidence at all.
    Assuming, without deciding, that the trial court erred when it refused
    Appellant’s request to include his proposed jury instruction in the court’s charge,
    any such error was harmless. When the trial court admitted the videotaped interview,
    it accommodated Appellant’s request to instruct the jury as to the limited use and
    consideration of Agent Yon’s statements. The trial court provided an additional
    21
    limiting instruction regarding the chat log and, again, admonished the jury that any
    statements made by Agent Yon were not to be considered for the truth of the matter
    asserted but, rather, were offered merely to place Appellant’s statements into
    “context.” Absent evidence to the contrary, which the record before us does not
    reflect, we must presume that the jury followed the instructions provided by the trial
    court during both phases of the trial. See Archie, 
    340 S.W.3d at 741
    ; Williams, 937
    S.W.2d at 490; see also Chambers, 580 S.W.3d at 154. Moreover, and as noted
    above, the complained-of statements were not offered by the State to prove that
    Appellant committed the charged offense, nor did the State focus on or emphasize
    these statements during any part of its case.
    Based on the entire record and the applicable standards of review, we cannot
    conclude that the trial court’s refusal to submit Appellant’s requested jury instruction
    resulted in the degree of harm that would require a reversal. Therefore, we hold that
    the trial court’s refusal to include a limiting instruction in its charge regarding the
    proper consideration of Agent Yon’s statements was harmless. Accordingly, we
    overrule Appellant’s third issue.
    D. Court-Appointed Attorney’s Fees and Court Reporter’s Fees
    In his fourth issue, Appellant contends—and the State agrees—that it was
    error to assess court-appointed attorney’s fees and court reporter’s fees against
    Appellant because he remained indigent.
    On appeal, court costs are reviewed to determine if there is a basis for the cost,
    not to determine if there was sufficient evidence offered at trial to prove each cost.
    Johnson v. State, 
    423 S.W.3d 385
    , 389 (Tex. Crim. App. 2014). An indigent
    defendant cannot be taxed the cost of his court-appointed attorney unless the trial
    court finds that the defendant has the financial resources to repay those costs in
    22
    whole or in part. Mayer v. State, 
    309 S.W.3d 552
    , 556 (Tex. Crim. App. 2010); see
    CRIM. PROC. arts. 26.05(g), 42A.301(b)(11) (discretionary conditions of community
    supervision) (West Supp. 2020). A defendant’s financial resources and ability to
    pay are explicit elements that the trial court must consider in its determination of
    whether to order the reimbursement of such costs and fees. Cates v. State, 
    402 S.W.3d 250
    , 251 (Tex. Crim. App. 2013); Sharpe v. State, 
    607 S.W.3d 446
    , 447–48
    (Tex. App.—Texarkana 2020, no pet.) (holding that court-appointed attorney’s fees
    were improperly assessed as a condition of community supervision that was not
    “contractual” in nature, i.e., not a result of a plea bargain). As such, a defendant who
    has been determined by the trial 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 resources occurs. CRIM. PROC. art. 26.04(p); Cates, 402
    S.W.3d at 251.
    Here, because the trial court had determined that Appellant was indigent,
    counsel was appointed to represent Appellant’s interest in all proceedings in the
    case. Appellant also filed a motion for a free reporter’s record, which the trial court
    granted. After Appellant’s sentence had been imposed by the trial court, the trial
    court signed a Nunc Pro Tunc Judgment of Conviction and Order Granting
    Community Supervision. In the judgment, the trial court ordered Appellant to pay,
    as a condition of community supervision, “all costs of prosecution and court costs
    and fees authorized by law including costs of court appointed attorney . . . as certified
    by the District Clerk in the bill of costs.” The district clerk subsequently submitted
    an amended bill of cost that charged and assessed against Appellant a $7,000 fee for
    the services of his court-appointed attorney and a court reporter’s record fee in the
    amount of $3,381.       Because there is nothing in the record to indicate that
    23
    (1) Appellant is no longer indigent or (2) that the trial court had made a subsequent
    determination that Appellant’s circumstances had materially changed or that he had
    the financial resources or ability to pay for the costs of his court-appointed attorney’s
    services or the court reporter’s record that were assessed against him, we hold that
    these costs were improperly assessed. See Cates, 402 S.W.3d at 252; Sharpe, 607
    S.W.3d at 447.
    When the trial court clerk erroneously includes fees as costs, we should
    modify the bill of cost to remove the improperly assessed fees. Accordingly, we
    sustain Appellant’s fourth issue and modify the trial court’s judgment and the district
    clerk’s bill of cost to delete the $7,000 court-appointed attorney’s fees and the $3,381
    court reporter’s record fee.
    III. This Court’s Ruling
    As modified, we affirm the judgment of the trial court. See TEX. R. APP. P.
    43.2(b).
    W. STACY TROTTER
    JUSTICE
    June 10, 2021
    Publish. See TEX. R. APP. P. 47.2(b).
    Panel consists of: Bailey, C.J.,
    Trotter, J., and Williams, J.
    24