Aguilera, Teresa

PD-1315-15
PD-1315-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/5/2015 3:32:49 PM
Accepted 10/7/2015 3:01:28 PM
ABEL ACOSTA
NO. __________________ CLERK

TO THE

COURT OF CRIMINAL APPEALS
OF TEXAS

***************

TERESA AGUILERA
Petitioner,
v.

THE STATE OF TEXAS
Respondent.
***************
PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
07-13-280-CR FROM THE SEVENTH COURT OF APPEALS
AND IN CAUSE NUMBER 65,099-B FROM THE
181st DISTRICT COURT OF POTTER COUNTY
***************

PETITION FOR DISCRETIONARY REVIEW
***************

John Bennett
Post Office Box 19144
Amarillo, TX 79114
October 7, 2015 Telephone: (806) 282-4455
Fax: (806) 398-1988
AppealsAttorney@gmail.com
State Bar No. 00785691
Attorney for the Petitioner

THE PETITIONER REQUESTS ORAL ARGUMENT
 IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Court Judge

Hon. John B. Board

Appellant

Teresa Aguilera

Trial Counsel: Michael Warner (State Bar No. 20872700)
101 S.E.2d 11th Avenue, Suite 301
Amarillo, Texas 79101
Telephone: (806) 372-2595

Appellate Counsel: John Bennett (State Bar No. 00785691)
P.O. Box 19144
Amarillo, Texas 79114
Telephone: (806) 282-4455

Appellee

The State of Texas

Trial Counsel: Richard Martindale (State Bar No. 00794236)
Potter County District Attorney’s Office
501 S. Fillmore, Suite 5-A
Amarillo, Texas 79101
Telephone: (806) 379-2325

Appellate Counsel: Richard Martindale (State Bar No. 15369200)
Potter County District Attorney’s Office
501 S. Fillmore, Suite 5-A
Amarillo, Texas 79101
Telephone: (806) 379-2325

2
 TABLE OF CONTENTS
Identity of Judge, Parties and Counsel..................................................................2

Index of Authorities ..............................................................................................4

Statement Regarding Oral Argument ...................................................................6

Statement of the Case............................................................................................6

Statement of Procedural History ...........................................................................6

Grounds for Review ..............................................................................................6

1. Are possessory offenses “result of conduct” ones?

2. Where the defendant presents evidence she was forced
to possess a substance, is a jury charge egregious harmful if it
permits conviction based on the result of the conduct?

Argument for Ground One ....................................................................................7

Argument for Ground Two ...................................................................................8

Prayer for Relief ..................................................................................................10

Certificate of Compliance ...................................................................................10

Certificate of Service ..........................................................................................11

Court of Appeals’ Opinion........................................................ following page 11

3
 INDEX OF AUTHORITIES

Cases

Ex parte Amador, 326 S.W.3d 202 (Tex.Crim.App. 2010)..................................7

Garcia v. State, 790 S.W.2d 22, 25 (Tex. App. – San Antonio

1990), abated, 840 S.W.2d 957 (Tex.Crim.App. 1992) ......................... 7-8

Gutierrez v. State, 446 S.W.3d 36 (Tex.App. – El Paso 2014,

pet. ref.) .......................................................................................................8

Huffman v. State, 267 S.W.3d 902 (Tex.Crim.App. 2008) ..................................7

Landrian v. State, 268 S.W.3d, 532 (Tex.Crim.App. 2008).................................7

Lugo-Lugo v. State, 650 S.W.2d 72 (Tex.Crim.App. 1983).................................7

Price v. State, 457 S.W.3d 437 (Tex.Crim.App. 2015) .................................. 9-10

Tovar v. State, 978 S.W.2d 584 (Tex.Crim.App. 1998) .......................................7

Villarreal v. State, 453 S.W.3d 429 (Tex.Crim.App. 2015)........................... 9-10

Rule

TEX. R. APP. P. 66.3(a) .......................................................................................8

TEX. R. APP. P. 66.3(b) .......................................................................................8

4
 NO. __________________

TO THE

COURT OF CRIMINAL APPEALS
OF TEXAS

***************

TERESA AGUILERA
Petitioner,
v.

THE STATE OF TEXAS
Respondent.
***************
PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
07-13-280-CR FROM THE SEVENTH COURT OF APPEALS
AND IN CAUSE NUMBER 65,099-B FROM THE
181st DISTRICT COURT OF POTTER COUNTY
***************

PETITION FOR DISCRETIONARY REVIEW
***************

To the Honorable Judges of the Court of Criminal Appeals:

COMES NOW Teresa Aguilera, petitioner in the above cause, and

submits this petition in support of her request for her appeal’s remand to the

Seventh Court of Appeals for new analysis.

5
 STATEMENT REGARDING ORAL ARGUMENT

Because an issue of first impression is involved, the petitioner requests

oral argument.

STATEMENT OF THE CASE

The petitioner pled not guilty of possession of four to 200 grams of

methamphetamine but was convicted by a jury. After finding an enhancement

allegation true, the jury returned a sentencing verdict of 60 years’ imprisonment.

STATEMENT OF PROCEDURAL HISTORY

The court of appeals affirmed the conviction and sentence on July 30,

2015 (attached). The petitioner filed a motion for rehearing on August 13, 2015.

On September 1, 2015, the court of appeals denied rehearing without opinion.

GROUNDS FOR REVIEW

1. Are possessory offenses “result of conduct” ones?

2. Where the defendant presents evidence she was forced to possess a

substance, is a jury charge egregious harmful if it permits conviction based on

the result of the conduct?

6
 ARGUMENT FOR ISSUE ONE

Are possessory offenses “result of conduct” ones?

The Court has classified many, if not most, offenses as “result of

conduct,” “nature of conduct,” or “circumstances surrounding the conduct,”

more than one of those or none of them. These include indecency with a child,

either by exposure or contact (nature of conduct), 1 aggravated assault by serious

bodily injury and by use or exhibition of a deadly weapon (both nature of

conduct), 2 murder via serious bodily injury (nature of conduct),3 failure to stop

and render aid (circumstances surrounding the conduct), 4 and conducting an

impermissibly closed meeting (no mental state required). 5

As the court of appeals notes, the “courts have not placed the offense of

possession of a controlled substance within a single category as a nature-, result-

or circumstances-oriented offense,” although one court of appeals hints that

possessory offenses are “nature of conduct” ones. 6 (Opinion, attached, p. 7).

1
Ex parte Amador, 326 S.W.3d 202, 220 (Tex.Crim.App. 2010).
2
Landrian v. State, 268 S.W.3d 532, 543 (Tex.Crim.App. 2008).
3
Lugo-Lugo v. State, 650 S.W.2d 72, 87-8 (Tex.Crim.App. 1983).
4
Huffman v. State, 267 S.W.3d 902, 908 (Tex.Crim.App. 2008).
5
Tovar v. State, 978 S.W.2d 584, 587 (Tex.Crim.App. 1998).
6
Garcia v. State, 790 S.W.2d 22, 25 (Tex. App. – San Antonio 1990) (“The mens rea
requirement of a possessory offense is knowledge by a defendant that his conduct or
the circumstances surrounding his conduct constitutes possession of a controlled
substance”), abated, 840 S.W.2d 957 (Tex.Crim.App. 1992) (en banc).

7
 To the extent Garcia holds that possessory offenses are “nature of

conduct” ones, then the decision below – that the matter is unsettled – conflicts

with Garcia. TEX. R. APP. P. 66.3(a). Also, given the abundance of

possessory offenses, the proper classification of them is an “important question

of state law under” TEX. R. APP. P. 66.3(b). And recently another court of

appeals has described classification as a very important matter in review; in

claims of jury charge error involving culpable mental states, as the petitioner

raised below, “the most crucial question in our analysis of this issue is whether

the element” in question “is a nature of conduct element or a result of conduct

element.” Gutierrez v. State, 446 S.W.3d 36, 40 (Tex.App. – El Paso 2014, pet.

ref.) (emphasis added).

ARGUMENT FOR ISSUE TWO

Where a defendant presents evidence she was forced to possess a

substance, is a jury charge egregious harmful if it permits conviction based on

the result of the conduct?

For reasons unexplained in the record, the petitioner’s trial counsel did not

request a jury instruction on duress. Nevertheless, the defensive trial strategy

relied on this defense.

8
 “Charge error is egregiously harmful if it affects the very basis of the

case, deprives the defendant of a valuable right, or vitally affects a defensive

theory.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex.Crim.App. 2015). But

the nature of duress is that the actor does something against her will. The court

of appeals held that an actor raising duress must nevertheless have the requisite

culpable mental state. (Opinion, p. 8-9). And authorizing of a possessory

conviction based on the result of conduct entails that evidence of coercion is

irrelevant. If a person is forced against her will to possess an object, she does

not intend the result of the possession – the result is caused by the coercion.

But the result, under the charge given, is all that a conviction requires.

The charge, not limited to the nature of the conduct, accordingly “vitally

affected” the petitioner’s sole defensive theory. Villarreal, 453 S.W.3d at 433.

The court of appeals also held egregious harm is absent since the charge’s

application paragraph required a finding that the petitioner possessed the

controlled substance, and so focused the jury on the nature of her conduct: this

thus told the jury it must find appellant intentionally or knowingly
engaged in the conduct of possession, not that she intentionally or
knowingly accomplished a particular result. To any degree that focus
on a result of conduct is improper in a drug possession case, therefore,
the jury here was properly focused on the nature of appellant’s conduct.

(Opinion, p. 10). But the culpable mental state must be tailored to the offense’s

status as nature, result and/or circumstances surrounding the conduct. Price v.

9
State, 457 S.W.3d 437, 441 (Tex.Crim.App. 2015). Here it was not, and

consequently all defensive evidence of the petitioner’s theory of duress was

rendered superfluous, entailing egregious harm. Villarreal, 453 S.W.3d at 433.

PRAYER FOR RELIEF

The petitioner prays the Court grant discretionary review and remand the

case to the court of appeals for new analysis, or grant all appropriate relief.

Respectfully submitted,

/s/ JOHN BENNETT
John Bennett
Post Office Box 19144
Amarillo, TX 79114
Telephone: (806) 282-4455
Fax: (806) 398-1988
AppealsAttorney@gmail.com
State Bar No. 00785691
Attorney for the Petitioner

CERTIFICATE OF COMPLIANCE

I certify that this entire PDR contains 1,429 words.

/s/ JOHN BENNETT
John Bennett

10
 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing PDR has

been served by personal delivery on Richard Martindale, Esq., Assistant District

Attorney for Potter County, and on Lisa McMinn, Esq., State Prosecuting

Attorney, by United States Mail, first class delivery prepaid, to her at P.O. Box

13046, Austin, Texas 78711, and by email to her at lisa.mcminn@spa.texas.gov,

all on October 5, 2015.

/s/ JOHN BENNETT
John Bennett

11
 In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-13-00280-CR

TERESA AGUILERA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court
Potter County, Texas
Trial Court No. 65,099-B, Honorable John B. Board, Presiding

July 30, 2015

MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Through three issues appellant Teresa Aguilera challenges her conviction for

possession of four grams or more but less than 200 grams of methamphetamine and

the resulting sentence of sixty years’ confinement in prison, enhanced.1 We will modify

1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010). This is a
second degree felony which was enhanced to a first degree felony because of
appellant’s prior felony conviction for injury to a child. See TEX. PENAL CODE ANN. §
12.42(b) (West Supp. 2014).
the judgment to indicate appellant is not obligated to pay for court-appointed counsel

and, as modified, affirm the judgment.

Background

Appellant was a passenger in a vehicle stopped by police for a traffic violation. A

warrants check revealed outstanding warrants against the driver and he was arrested.

He possessed two pocket knives.

An officer spoke with appellant at the passenger side of the vehicle. She

appeared “very fidgety, nervous.” She stepped out of the vehicle and officers

conducted a consensual search of the vehicle and her pockets. A records check

revealed an outstanding warrant against appellant and she was arrested. When warned

of the consequences of bringing contraband into the county jail, appellant became

“visibly upset and started to cry.” She told officers she wished to surrender contraband

outside the sight of the driver because she was afraid of him and did not want him to

see her deliver it to officers. Officers accommodated her request and appellant

retrieved a cigarette pack hidden in her clothing. The package contained a marijuana

pipe, “raw marijuana” and burnt residue, and baggies containing a total of 4.11 grams of

methamphetamine.

According to appellant, when police executed the traffic stop the driver stuck a

knife “right there in the same place I have a previous mark right there.”2 Appellant

continued, the driver “bumped me with his elbow and . . . threw the pack of cigarettes

and something on me and everything. I didn’t want to do it.” She concealed the
2
It appears the location she indicated was that of a stab wound inflicted by a
former husband.

2
package in her clothing. She tried to exit the vehicle but appellant grabbed her “and just

pulled [her] back real ugly.”

Earlier in the evening appellant smoked methamphetamine provided by the

driver. Appellant denied knowingly or intentionally possessing the methamphetamine

found in the cigarette pack but seemed to admit such knowledge on cross-examination.

She testified the driver is a member of the Texas Syndicate gang, a claim he denied.

The officers to whom appellant surrendered the contraband and who transported her to

jail testified she did not mention the driver’s threat. The driver testified he did not

threaten appellant or possess the methamphetamine found on appellant in the cigarette

pack.

The evidence showed appellant and the driver had prior convictions, appellant for

marijuana possession, assault, driving while intoxicated, bail jumping, injury to a child,

theft, and possession of the marijuana pipe found in the cigarette pack. The driver was

previously convicted of evading arrest, forgery, burglary, organized crime, criminal

mischief, and failure to give identification as a fugitive. He denied drug dealing but

admitted smoking methamphetamine and marijuana.

Appellant agreed that occasionally she believes herself unable to differentiate

reality from dreaming. She acknowledged she had claimed her bail bondsman sexually

molested her and pointed a gun at her. In the State’s rebuttal, the bondsman denied

appellant’s claim.

The State’s rebuttal evidence showed that, in events after the charged offense,

appellant was convicted for misdemeanor possession of marijuana, possessed

3
marijuana when arrested by a bondsman for bond forfeiture, and at a traffic stop

produced marijuana concealed in her clothing.

Without objection, the charge contained the full statutory definitions of the mental

states intentionally and knowingly, as follows:

A person acts intentionally, or with intent, with respect to the nature of her
conduct or to a result of her conduct when it is her conscious objective or
desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of
her conduct or to circumstances surrounding her conduct when she is
aware of the nature of her conduct or that the circumstances exist. A
person acts knowingly, or with knowledge, with respect to a result of her
conduct when she is aware that her conduct is reasonably certain to
cause the result.

The application paragraph stated:

Now bearing in mind the foregoing instructions, if you find from the
evidence beyond a reasonable doubt that on or about 8th day of March,
2012, in Potter County, Texas, the defendant, TERESA AGUILERA, did
then and there intentionally or knowingly possess a controlled substance,
namely, methamphetamine, in an amount of four grams or more but less
than two hundred grams then you will find the defendant guilty of
possession of a controlled substance, as charged in the indictment and
say so by your verdict.

Based on her claim of duress, appellant argued her conduct was justified. The

trial court, accordingly, submitted instructions and an application paragraph regarding

the defense of duress.

Appellant was convicted and after the punishment phase the court imposed the

sentence noted.

4
 Analysis

Appellant’s first two issues concern asserted error in the court’s charge. In her

first issue she asserts:

Possession of a controlled substance is both a “nature of conduct” and
“circumstances surrounding the conduct” offense. The appellant raised a
defense of duress–that she possessed the substance as a result of being
physically threatened with a knife to her neck. But the jury charge
permitted a guilty verdict based solely on the result of her conduct–that if
the result was possession, guilt was a proper verdict. Did the charge
cause egregious harm?

Appellant elaborates that even if jurors were not convinced of her justification defense,

the supporting testimony nevertheless should have caused them to question her

culpability given the circumstances surrounding her possession of the

methamphetamine. But, appellant continues, the charge “effectively negated” this

evidence by permitting a guilty verdict based solely on the result of her conduct, that is,

possession of methamphetamine.

“[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex.

Crim. App. 2012). We first consider then whether the trial court committed charge error

as appellant asserts. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

Should we find error, we then determine whether appellant was harmed to a degree

warranting reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g).

Health and Safety Code section 481.115(a) provides, “Except as authorized by

this chapter, a person commits an offense if the person knowingly or intentionally

5
possesses a controlled substance listed in Penalty Group 1, unless the person obtained

the substance directly from or under a valid prescription or order of a practitioner acting

in the course of professional practice.” TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)

(West 2010).

The element of an offense means the forbidden conduct, any required result, the

required culpability, and negation of any exception to the offense. TEX. PENAL CODE

ANN. § 1.07(a)(22) (West Supp. 2014). The culpable mental states specified by the

Penal Code apply to three possible conduct elements of an offense; that is, the nature

of the conduct, the result of the conduct, and the circumstances surrounding the

conduct. TEX. PENAL CODE ANN. § 6.03 (West 2011); Robinson v. State, No. PD-0421-

14, 2015 Tex. Crim. App. LEXIS 763, at *7 (Tex. Crim. App. July 1, 2015); McQueen v.

State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); Alvarado v. State, 704 S.W.2d 36,

38 (Tex. Crim. App. 1985). When an offense specifically delineates the type of conduct,

the trial court should limit the statutory definitions in the jury charge to the culpable

mental state required. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994);

Murray v. State, 804 S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. refused); 43

George E. Dix & John M. Schmolesky, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE &

PROCEDURE § 43:7 (3d ed. 2011). Appellant argues the court erred by including in the

charge definitions of the terms intentionally and knowingly that referred to a result of

conduct.

6
 Our courts have not placed the offense of possession of a controlled substance

within a single category as a nature-, result- or circumstances-oriented offense.3 See

Harris v. State, No. 02-12-00091-CR, 2014 Tex. App. LEXIS 3930, at *6-8 (Tex. App.—

Fort Worth Apr. 10, 2014, pet. refused) (mem. op., not designated for publication)

(noting possession of controlled substance not clearly categorized “as either result or

conduct oriented”); Garcia v. State, 790 S.W.2d 22, 25 (Tex. App.—San Antonio 1990)

(“The mens rea requirement of a possessory offense is knowledge by a defendant that

his conduct or the circumstances surrounding his conduct constitutes possession of a

controlled substance”), abated, 840 S.W.2d 957 (Tex. Crim. App. 1992) (en banc, per

curiam) (prior opinions withdrawn and appeal permanently abated on death of

appellant). See generally Huffman v. State, 267 S.W.3d 902, 905-07 (Tex. Crim. App.

2008) (describing categorization analyses). If an offense defies uniform categorization,

a trial court does not err by submitting a charge containing the complete statutory

definitions of the applicable culpable mental states because the statutory definitions

allow the jury to consider either the result or the nature of the defendant’s conduct. See

Harris, 2014 Tex. App. LEXIS 3930, at *8; Murray, 804 S.W.2d at 281 (citing Saldivar v.

State, 783 S.W.2d 265, 267-68 (Tex. App.—Corpus Christi 1989, no pet.)) (“when an

3
Appellant cites our opinion in Scott v. State, 253 S.W.3d 736, 742-43
(Tex.App.—Amarillo 2007, pet. refused) for the proposition that possession of a
controlled substance is a nature of conduct and circumstances surrounding the conduct
offense. We presume appellant relies on our quotation of the first sentence of Penal
Code section 6.03(b) (referring to nature of conduct and circumstances surrounding
conduct) in our egregious harm analysis in that case, and the fact we did not there also
quote the second sentence, which refers to result of conduct. Appellant reads too much
into the omission of the second sentence of section 6.03(b) at that location in Scott. In
the context, quotation of the second sentence was unnecessary. Our omission of that
sentence should not be taken as our expression of a holding that result of conduct has
no place in culpable mental state definitions in possession cases.

7
offense is both a result and a nature of the conduct type of offense, with respect to the

intent or knowledge required, the trial court should submit complete statutory definitions

of intentional and knowingly so that the jury can consider both the result of the

offender’s conduct and the nature of his conduct” (internal quotation marks and

emphasis omitted)). Contrary to appellant’s assertion, the offense for which she was

tried may be result-oriented. Accordingly, the jury charge, which allowed the jury to

consider either conduct or the result, was not erroneous.

If for the sake of argument we assume the trial court erred by including the result-

of-conduct definition, the record does not demonstrate reversible error. Because

appellant did not raise at trial the objection to the charge she now urges on appeal, to

reverse the judgment we must determine that the resulting harm to appellant was

egregious. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Egregious

harm results from charge error that affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007). This is a difficult standard to meet and

requires the record disclose actual rather than theoretical harm. Nava v. State, 415

S.W.3d 289, 298 (Tex. Crim. App. 2013). The analysis for egregious harm considers

the entire jury charge, the state of the evidence (including the contested issues and the

weight of probative evidence), and the arguments of counsel, as well as all other

relevant information shown by the record. Nava, 415 S.W.3d at 298.

Appellant’s contention is that she was egregiously harmed because the charge’s

definitions undermined her defensive theory, the justification defense of duress. We

first note it is difficult to see how a defense of duress could be impaired by the

8
definitions included in this charge because the law requires a defendant asserting

duress to admit she engaged in the proscribed conduct, including its required culpable

mental state. Ramirez v. State, 336 S.W.3d 846, 851 (Tex. App.—Amarillo 2011, pet.

refused) (citing Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998); Timms v.

State, No. 07-09-0001-CR, 2009 Tex.App. LEXIS 10042, at *3 (Tex. App.—Amarillo

April 22, 2009, pet. refused)); see Whitworth v. State, No. 11-12-00114-CR, 2014 Tex.

App. LEXIS 5864, at *9 (Tex. App.—Eastland May 30, 2014, pet. refused) (mem. op.,

not designated for publication) (“The doctrine of confession and avoidance applies to

the defense of duress and the defense of necessity. Thus, to be entitled to an

instruction on the defense of duress, [a defendant] must point to defensive evidence

that shows that he admits to every element of the offense, including the culpable mental

state” (citing, inter alia, Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007)

(describing operation of justification defense))).

As noted, appellant further contends the charge’s inclusion of the result-oriented

definitions impaired the chance the jury would accept an argument she lacked the

intention or knowledge to possess the methamphetamine, even if the jury rejected her

duress defense. But appellant does not explain how, if at all, drug possession

illuminated by the nature of her intentional conduct would differ from possession shown

by her intention to achieve that result. See TEX. PENAL CODE ANN. § 6.03(a) (West

2011) (person acts with intent when it is her conscious objective or desire to engage in

the conduct or cause the result); Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App.

1995) (conviction of possession of controlled substance requires proof defendant

exercised control, management or care over substance and knew the matter possessed

9
was contraband). Appellant’s argument the record demonstrates egregious harm is not

persuasive.

The jury charge defined “possession” as “actual care, custody, control or

management of an item.” Its application paragraph required the jury to find appellant

did, at the requisite time and place, “intentionally or knowingly possess a controlled

substance, namely, methamphetamine . . . .” The application paragraph thus told the

jury it must find appellant intentionally or knowingly engaged in the conduct of

possession, not that she intentionally or knowingly accomplished a particular result. To

any degree that focus on a result of conduct is improper in a drug possession case,

therefore, the jury here was properly focused on the nature of appellant’s conduct. For

that reason also, we find any error in the abstract definitions of the culpable mental

states was not calculated to injure appellant’s rights or deprive her of a fair and impartial

trial. TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006); see Medina v. State, 7

S.W.3d 633, 640 (Tex. Crim. App. 1999) (“Where the application paragraph correctly

instructs the jury, an error in the abstract instruction is not egregious”); Harris, 2014 Tex.

App. LEXIS 3930, at *8-9. Appellant’s first issue is overruled.

By her second issue, appellant argues that because in the abstract the court

gave each Penal Code definition of intentional and knowing, the jury was erroneously

relieved of the obligation to render a unanimous verdict, causing her egregious harm.

Appellant, citing our opinion in Scott, 253 S.W.3d at 742-43, bases her argument again

on the notion that result of conduct has no part in possession offenses. We have

explained that we did not hold as much in Scott, and the assertion is not consistent with

10
the opinions of other courts of appeals. See, e.g., Harris, 2014 Tex. App. LEXIS 3930,

at *6-8. For that reason, appellant’s second issue is overruled.

Through her third issue, appellant contends she was required to repay court-

appointed attorney’s fees when she was at all times indigent. The clerk’s record

indicates appellant received court-appointed trial counsel and appellate counsel

because of indigence. The judgment signed on August 13, 2013, and a judgment nunc

pro tunc signed on August 20, 2013, require that appellant repay court costs “as per

attached Bill of Cost.” Elsewhere, these judgments order “upon release from

confinement, Defendant proceed immediately to the Potter County District Clerk. Once

there, the Court ORDERS Defendant to pay, or make arrangements to pay, any

remaining unpaid fines, court costs, and restitution as ordered by the Court as per

attached Bill of Cost.” Neither the bill of costs following the August 13 judgment nor the

bill of costs following the August 20 judgment nunc pro tunc contain an amount of

attorney’s fees.

A supplemental clerk’s record filed on June 25, 2014, contains a bill of costs

dated February 26, 2014 which includes an attorney’s fees balance of $2,800, and a

June 25, 2014, “amended” bill of costs which omits any amount of attorney’s fees. The

June 25 amended bill of costs, although included in the supplemental clerk’s record,

was not signed and does not bear a file stamp. Each signed bill of costs in the record

contains the printed statement: “Please note–other fees may be applied at a later date:

Upon this office reviewing the Judgment, Probation Order, Order Deferring and Order to

Pay Court Appointed Attorney (by statute) other fees may apply.”

11
 A trial court has authority to order reimbursement of the fees of court-appointed

counsel if the court determines that a defendant has financial resources enabling her to

offset, in part or in whole, the costs of the legal services provided. TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (West Supp. 2014); Mayer v. State, 274 S.W.3d 898, 901 (Tex.

App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010). But “[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. 26.04(p) (West 2014).

“[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.” Mayer, 309 S.W.3d at 556. Accordingly, the record must supply a factual basis

supporting a determination the defendant is capable of repaying the attorney’s fees

levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.) (per

curiam).

Here, the record does not show the trial court reconsidered its determination of

indigency, the occurrence of a material change in appellant’s financial circumstances, or

her ability to offset the cost of legal services provided. TEX. CODE CRIM. PROC. ANN. art.

26.04(p) and art. 26.05(g) (West Supp. 2014). As noted, after imposition of sentence

the trial court appointed appellate counsel for appellant and ordered a free record based

on appellant’s indigence. We agree with appellant there is no evidence she is able to

repay attorney’s fees expended on her behalf. While it appears intended that appellant

not bear the repayment obligation of her court-appointed attorney’s fees, the broad

language of the judgment nunc pro tunc, the inclusion in the February 26, 2014 bill of

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costs of an amount of attorney’s fees, and the clerk’s written admonition of the possible

future addition of fees cast doubt on that outcome.

We therefore sustain appellant’s third issue and modify the judgment nunc pro

tunc to preclude the recovery of court-appointed attorney’s fees as a court cost.

Conclusion

We make the following modification to the August 20, 2013 “nunc pro tunc

judgment of conviction by jury.” At page 2, beneath the heading “Furthermore, the

following special findings or orders apply:” there is added, “As used in this judgment, the

term ‘court costs’ does not include court-appointed attorney’s fees.”

As modified, we affirm the judgment of the trial court. TEX. R. APP. P. 43.2(b).

James T. Campbell
Justice

Do not publish.

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