Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-19-00713-CR

John Derek ALLEN,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Gillespie County, Texas

Trial Court No. DC6678

Honorable N. Keith Williams, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Dissenting Opinion by: Patricia O. Alvarez, Justice 

Sitting: Rebeca C. Martinez, Chief Justice

Patricia O. Alvarez, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: April 28, 2021

AFFIRMED AS MODIFIED

A jury convicted appellant John Derek Allen of knowingly possessing a controlled 

substance in Penalty Group 1 (methamphetamine) of less than one gram within a drug-free zone. 

See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). On appeal, Allen argues the evidence 

against him was legally insufficient and that the trial court erred in assessing attorney’s fees. We 

modify the judgment to delete the assessment of the attorney’s fees against Allen and affirm the 

judgment as modified. 
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BACKGROUND

In October 2017, Allen was stopped for a traffic violation near Fredericksburg Middle 

School after failing to activate his blinker at least 100 feet before making a turn. The deputy who 

stopped Allen discovered that his driver’s license was suspended and arrested him for driving 

while his license was invalid. When the deputy asked Allen if he had any weapons or drugs in his 

possession, Allen said he did not, but that he had an insulin needle in the front pocket of his pants. 

The deputy then retrieved a syringe from Allen’s front pocket and subsequently conducted an 

inventory search of Allen’s vehicle, during which an additional syringe was discovered. No

evidence of insulin or other medication was found. A lab technician tested the residue from the 

syringe found in Allen’s pocket and determined that it was positive for methamphetamine. 

Early in the case, Allen was found indigent and counsel was appointed to represent him.

At the beginning of trial, Allen told the trial court he wanted to hire an attorney to replace his 

court-appointed attorney and that he had a job and money to retain an attorney. Allen’s courtappointed attorney indicated that Allen had represented to him that he was going to hire a lawyer 

over six months ago. The court also noted on the record that the case had previously been reset 

numerous times and then denied Allen’s request for additional time to hire an attorney. The jury 

unanimously found Allen guilty of knowing possession of a controlled substance in Penalty Group 

1 of less than one gram within a drug-free zone. See id. 

At the sentencing hearing, Allen stated that he had a job as a musician and a waiter. At the 

end of the hearing, Allen’s appointed attorney made an oral motion to withdraw, which the court 

granted. The trial court sentenced Allen to 45 days in the Gillespie County Jail, two years in the 

Texas Department of Criminal Justice probated for three years, and 100 hours of community 

service. The court also ordered Allen to pay $2,600, a reduced amount of his court-appointed 

attorney’s fees. Later that evening, after the trial court signed the judgment, retained appellate 
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counsel for Allen filed a notice of appearance. Allen now appeals his conviction and attorney’s 

fees. 

LEGAL SUFFICIENCY FOR KNOWING POSSESSION OF A CONTROLLED SUBSTANCE

Allen argues the evidence is legally insufficient to support his conviction because there is 

no evidence indicating that he knew the syringe he possessed contained a controlled substance. 

We disagree. 

A. Standard of Review 

When determining whether there is sufficient evidence to support a conviction, the 

reviewing court “consider[s] the combined and cumulative force of all admitted evidence in the 

light most favorable to the verdict to determine whether, based on that evidence and the reasonable 

inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt.” 

Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Jackson v. Virginia, 443 U.S. 

307, 318–19 (1979)); accord Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010). 

“Because the jury is the sole judge of the credibility of witnesses and of the weight given to their 

testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict.” 

Espino-Cruz v. State, 586 S.W.3d 538, 543 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d) 

(citing Jackson v. State, 530 S.W.3d 738, 741–42 (Tex. App.—Houston [14th Dist.] 2017, no 

pet.)). “The verdict may not be overturned unless it is irrational or unsupported by proof beyond 

a reasonable doubt.” Gamelin v. State, No. 14-08-00977-CR, 2010 WL 1037944, at *2 (Tex. 

App.—Houston [14th Dist.] Mar. 23, 2010, no pet.) (mem. op., not designated for publication)

(citing Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991)). 

B. Applicable Law

“[I]n a possession of a controlled substance prosecution, ‘the State must prove that: (1) the 

accused exercised control, management, or care over the substance; and (2) the accused knew the 
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matter possessed was contraband.’” Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) 

(quoting Evans v. State, 185 S.W.3d 30, 34 (Tex. App.⸺San Antonio 2005)); see also TEX.

HEALTH & SAFETY CODE ANN. § 481.115(a); TEX. PENAL CODE ANN. § 1.07(a)(39). “When the 

quantity of a substance possessed is so small that it cannot be quantitatively measured, there must 

be evidence other than its mere possession to prove that the defendant knew the substance in his 

possession was a controlled substance.” Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. 

1979). “Regardless of whether the evidence is direct or circumstantial, it must establish that the 

defendant’s connection with the drug was more than fortuitous.” Evans, 202 S.W.3d at 161; see 

also Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005), overruled in part on 

other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015). 

“[P]resence or proximity, when combined with other evidence . . . may well be sufficient to 

establish that element beyond a reasonable doubt.” Evans, 202 S.W.3d at 162. A non-exclusive 

list of factors that tend to establish affirmative links include: 

(1) the defendant’s presence when a search is conducted; (2) whether the 

contraband was in plain view; (3) the defendant’s proximity to and the accessibility 

of the narcotic; (4) whether the defendant was under the influence of narcotics when 

arrested; (5) whether the defendant possessed other contraband or narcotics when 

arrested; (6) whether the defendant made incriminating statements when arrested; 

(7) whether the defendant attempted to flee; (8) whether the defendant made furtive 

gestures; (9) whether there was an odor of contraband; (10) whether other 

contraband or drug paraphernalia were present; (11) whether the defendant owned 

or had the right to possess the place where the drugs were found; (12) whether the 

place where the drugs were found was enclosed; (13) whether the defendant was 

found with a large amount of cash; and (14) whether the conduct of the defendant 

indicated a consciousness of guilt.

Id. at 162 n.12 (citing Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 

2005, no pet.)). The number of factors present is not as important as the logical force the factors 

create to prove the accused knowingly possessed the controlled substance. See Robertson v. State, 

80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). “Without an admission by 
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the accused, knowledge may be inferred from the circumstances.” Hyett v. State, 58 S.W.3d 826, 

831 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (citing Linton v. State, 15 S.W.2d 615, 618 

(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)). For example, a jury can rationally conclude 

that an individual is aware of the contents of his pants pocket. See Clark v. State, No. 14-09-

00944-CR, 2010 WL 4673713, at *2 (Tex. App.—Houston [14th Dist.] Nov. 18, 2010, no pet.) 

(mem. op., not designated for publication). 

C. Analysis 

In this case, the contraband was contained in Allen’s front pocket of his pants. See Clark, 

2010 WL 4673713, at *2 (concluding that a rational jury could have concluded that an individual 

is aware of the contents of his pants pocket). He was aware of the syringe and told the deputy that 

it was for insulin. However, during the inventory search of his vehicle, deputies never found any 

insulin or medication to corroborate Allen’s statement. See Hood v. State, No. 11-09-00098-CR, 

2010 WL 3049030, at *4 (Tex. App.—Eastland Aug. 5, 2010, no pet.) (mem. op., not designated 

for publication) (holding that a jury could have reasonably concluded that the defendant knowingly 

possessed methamphetamine when there was no other explanation for a syringe found in the pocket 

of a pair of pants in the defendant’s backpack). 

The Bexar County Crime Lab’s description of the evidence stated that it received a “loose 

plastic syringe containing a light brown liquid residue” and the lab results indicated that the residue 

tested positive for methamphetamine. See Mayes v. State, 831 S.W.2d 5, 6 (Tex. App.—Houston 

[1st Dist.] 1992, no pet.) (“[I]f the controlled substance can be seen and measured, the amount is 

sufficient to establish that the appellant knew it was a controlled substance.”). Reviewing the 

evidence in the light most favorable to the verdict, we find that there was legally sufficient 

evidence to show that Allen knowingly possessed the controlled substance. We overrule his first 

issue. 
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ATTORNEY’S FEES 

Allen challenges the assessment of $2,600 in attorney’s fees as part of the costs imposed 

in the judgment. He asserts the trial court found him indigent early in the case, he was presumed 

to remain indigent, and there is no evidence to show he was able to pay the court-appointed 

attorney’s fees. The State responds that Allen’s statement to the court that he had a job and could 

retain counsel along with the fact that Allen did retain counsel on appeal demonstrates a material 

change in his financial circumstances and rebuts the presumption of indigency. We disagree. 

A. Applicable Law

“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); see Wiley v. State,

410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim.

App. 2010). “If the judge determines that a defendant has financial resources that enable the 

defendant to offset in part or in whole the costs of the legal services . . . , the judge shall order the 

defendant to pay . . . as a reimbursement fee the amount that the judge finds the defendant is able 

to pay.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g). “[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. Thus, a trial court may 

assess attorney’s fees against a formerly indigent defendant only when it makes a finding, either 

expressly or implicitly, that the defendant’s financial status materially changed. Wiley, 410 

S.W.3d at 317; Mayer, 309 S.W.3d at 556. 

Absent such a finding or any other evidence in the record indicating a change in financial 

status, the evidence is insufficient to support imposition of attorney’s fees. See Mayer, 309 S.W.3d 

at 556–58. A defendant may challenge the sufficiency of the evidence of his changed financial 
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resources and ability to pay for the first time on appeal. See id. at 556; Fulmer v. State, 401 S.W.3d

305, 318 (Tex. App.—San Antonio 2013, pet ref’d). We review the record to determine whether 

the trial court could have reasonably determined the appellant’s financial circumstances 

experienced a material change and the appellant was able to pay the court-appointed attorney’s 

fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); McFatridge v. State, 309 S.W.3d 1, 6 (Tex.

Crim. App. 2010). 

B. Analysis 

Allen was found indigent early in the case, and counsel was appointed to represent him on 

March 15, 2018. The record is devoid of any evidence that Allen’s financial condition materially 

changed between that date and the date he was ordered to pay attorney’s fees. See Ellis-Henry v. 

State, No. 03-14-00054-CR, 2015 WL 3857292, at *1 (Tex. App.—Austin June 16, 2015, no pet.) 

(mem. op., not designated for publication) (holding that the record did not contain any evidence 

that the defendant’s financial condition changed between the date she was found indigent and the 

date she was ordered to pay attorney’s fees). While Allen told the court that he received a job 

during this time period, there is no evidence as to how Allen’s job constituted a material change 

in his financial circumstances. See Gordon v. State, No. 03-09-00486-CR, 2010 WL 3058637, at 

*2 (Tex. App.—Austin Aug. 2, 2010, no pet.) (mem. op., not designated for publication) (holding 

“there was no evidence presented as to how much money [the defendant] ultimately earned or as 

to whether [the defendant]’s income was sufficient to cover his basic living expenses.”); cf. Dieken 

v. State, 432 S.W.3d 444, 449 (Tex. App.—San Antonio 2014, no pet.) (holding that the trial court 

did not err in ordering the defendant to pay $524.50 in attorney’s fees after hearing testimony and 

receiving documents to reasonably support its determination). The trial court made no findings on 

the record indicating that Allen’s financial status had changed such that he was able to “offset in 

part or in whole the costs of the legal services” provided to him; neither does the evidence support 
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such an implicit finding. TEX. CODE CRIM. PROC. ANN. art. 26.05(g); see also Dieken, 432 S.W.3d 

at 449 (stating that when there has been no express written or oral finding of material change in 

financial circumstances, the appellate court must determine whether the evidence reasonably 

supports an implicit finding of a material change). 

The State contends that Allen’s ability to retain counsel on appeal demonstrates a financial 

change in circumstances. However, Allen’s retained counsel filed his notice of appearance in the

evening after the trial court signed its judgment ordering Allen to pay attorney’s fees. The mere 

fact that Allen retained counsel on appeal does not support a determination that a defendant’s 

financial circumstances have materially changed. See Vargas v. State, Nos. 05-12-00334-CR, 05-

12-00335-CR, 05-12-00336-CR, 2013 WL 3717768, at *4 (Tex. App.—Dallas July 12, 2013, no 

pet.) (mem. op., not designated for publication) (holding that the record did not contain evidence 

to support the trial court’s judgment that the appellant was able to pay his court-appointed 

attorney’s fees, even though the defendant was able to retain counsel). There is no evidence in the 

record that the trial court was aware that Allen had retained counsel on appeal. Cf. Dieken, 432 

S.W.3d at 449 (retained counsel presented a motion to substitute expressly stating the defendant 

had retained counsel, and counsel stated on the record in open court that the defendant hired him

and that a third-party would pay for a psychiatric examination). Accordingly, we hold that the 

trial court erred by ordering Allen to pay court-appointed attorney’s fees. We modify the trial 

court’s judgment to delete the order that Allen pay $2,600 in attorney’s fees. 

OTHER JUDGMENT MODIFICATIONS

This court may correct certain errors in a judgment by modifying the judgment. See Bigley 

v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Morris v. State, 496 S.W.3d 833, 836 

(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (“‘Appellate courts have the power to reform 

whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence 
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necessary to correct the judgment appears in the record.’” (quoting Asberry v. State, 813 S.W.2d 

526, 529 (Tex. App.—Dallas 1991, pet. ref’d))); Penton v. State, 489 S.W.3d 578, 581 (Tex. App.–

Houston [14th Dist.] 2016, pet. ref’d). Here, the State points out that for the punishment to 

conform with the jury’s verdict and affirmative finding on the special issue of the drug-free zone, 

the judgment should be reformed to specify that Allen was convicted of a third-degree felony 

rather than a state jail felony, and that his underlying prison term would be assigned to the 

institutional division of the Texas Department of Criminal Justice rather than the state jail division. 

Furthermore, the judgment form’s checkboxes should reflect that Allen was placed on probation 

for three years and that Allen was sentenced by the trial court rather than by the jury. We agree 

the evidence necessary to correct the judgment appears in the record.

Accordingly, we MODIFY the language of the judgment as follows:

• under the heading “Degree of Offense” that reads “State Jail Felony,” we MODIFY the 

language to read “3RD DEGREE FELONY”;

• under the heading “Punished Assessed by” that reads “Jury,” we MODIFY the language 

to read “Court”;

• under the heading “Punishment and Place of Confinement” that reads “State Jail 

Division” we MODIFY the language to read “Institutional Division”;

• next to the entry of Sentence of Confinement Suspended, we MODIFY the language to 

read “Three (3) years” and note that checkbox should be checked. 

CONCLUSION

Having reviewed the record, we conclude that the evidence was legally sufficient to convict 

Allen of knowing possession of Penalty Group 1 drugs under one gram. However, we hold that 

the trial court erred by ordering Allen to pay court-appointed attorney’s fees and modify the trial 
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court’s judgment to delete the order that Allen pay $2,600 for court-appointed attorney’s fees. As 

modified and reformed, we affirm the judgment of conviction. 

Rebeca C. Martinez, Chief Justice

DO NOT PUBLISH