AFFIRM; Opinion Filed February 22, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-01376-CR 

MICHAEL ROY SANDERS, JR., Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 86th Judicial District Court 

Kaufman County, Texas 

Trial Court Cause No. 20-50368-86-F 

MEMORANDUM OPINION 

Before Justices Nowell, Miskel, and Kennedy 

Opinion by Justice Kennedy 

Michael Roy Sanders, Jr. appeals his conviction for manslaughter. In his first 

issue, he argues the jury charge failed to properly instruct the jury regarding the issue 

of self-defense. In his second issue, he challenges the sufficiency of the evidence to 

support his conviction for manslaughter. In his third issue, he urges the trial court 

erred by instructing the jury that aggravated assault with a deadly weapon was a 

lesser included offense of manslaughter. In his fourth issue, he asserts the trial court 

neglected to make an indigency inquiry as required by article 42.15 of the code of 

criminal procedure and erred by ordering appellant to pay costs of court. We affirm 
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the trial court’s judgment. Because all issues are settled in law, we issue this 

memorandum opinion. TEX. R. APP. P. 47.4. 

BACKGROUND

Chad Jobe, the decedent, graduated from Terrell High School in 2001 where 

he played football and basketball and ran track. His achievements in football 

included scoring multiple touchdowns; rushing over 1,000 yards his sophomore 

year; being named all-district outstanding offensive back of the year and earning the 

Terrell High School Distinguished Service Award his junior year; and being named 

leading rusher in his district in his senior year. Two years after his death, he was 

inducted into the high school’s hall of fame for his performance in football. 

The night of July 31, 2020, and into the early hours of August 1, appellant 

was at a party at a house in Terrell. At approximately midnight, Jobe arrived at the 

party and began greeting and talking with people who were standing outside in front 

of the house before walking up to appellant who was also standing in front of the 

house. Jobe demanded to know what appellant was doing at the party. Appellant 

drew a handgun from his pocket and fired approximately four to six shots at Jobe. 

After appellant ran out of bullets, he went to his car and left the scene. 

One of the party guests called 9-1-1 to report the shooting, and police officers 

and other first responders arrived soon after Jobe was shot. Jobe was taken by 

ambulance from the scene and subsequently airlifted to a hospital in Dallas. He had 

sustained a gunshot wound on the left side of his abdomen and a second gunshot 
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wound on his right arm. On August 3, Jobe died as a result of the gunshot wound to 

his abdomen. 

On September 25, appellant was charged by indictment with murder. 

Appellant entered a plea of not guilty, and the case proceeded to trial before a jury. 

The jury found appellant guilty of the lesser included offense of manslaughter and 

sentenced appellant to twenty years’ imprisonment in the Texas Department of 

Criminal Justice. The judgment of conviction includes an affirmative finding that a 

deadly weapon was used in the commission of the offense. Appellant timely filed 

his notice of appeal. 

DISCUSSION

I. Sufficiency of the Evidence 

In his second issue, appellant challenges the sufficiency of the evidence to 

support his conviction for manslaughter. We address sufficiency issues first 

because, in the event they are meritorious, we would render a judgment of acquittal 

rather than reverse and remand. See O’Reilly v. State, 501 S.W.3d 722, 726 (Tex. 

App.—Dallas 2016, no pet.) (citing Benavidez v. State, 323 S.W.3d 179, 181 (Tex. 

Crim. App. 2010) (appellate courts render judgment of acquittal only when trial 

court’s ruling amounts to de facto acquittal or appellate courts find evidence was 

legally insufficient to support convictions); Owens v. State, 135 S.W.3d 302, 305 

(Tex. App.—Houston [14th Dist.] 2004, no pet.) (legal-sufficiency challenge must 
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be addressed first because if evidence is insufficient, reviewing court must render 

judgment of acquittal)). 

In order to support a conviction for manslaughter, the evidence must show a 

person recklessly caused the death of an individual. TEX. PENAL CODE § 19.04. A 

person acts recklessly with respect to the result of his conduct when he is aware but 

consciously disregards a substantial and unjustifiable risk that the result will occur; 

the risk must be of such a nature and degree that disregarding it constitutes a gross 

deviation from the standard of care an ordinary person would exercise under all the 

circumstances as viewed from the actor’s standpoint. Id. § 6.03(c). 

Appellant urges that the record is “completely devoid of any evidence 

suggesting that this act was done recklessly.” Instead, he asserts that the evidence 

supports a conclusion that he acted intentionally and knowingly such that it was error 

for the trial court to instruct the jury on manslaughter. In support of his arguments, 

appellant relies on opinions analyzing whether a trial court erred by refusing to 

instruct a jury on a lesser included offense, in particular Cavazos v. State, 382 

S.W.3d 377, 382 (Tex. Crim. App. 2012). 

As stated by the court of criminal appeals, courts apply a two-step test to 

determine whether an instruction on a lesser included offense should be given to the 

jury. See id. First, the court determines if the proof necessary to establish the 

charged offense also includes the lesser offense. See id. If this threshold is met, the 

court must then consider whether the evidence shows that if the appellant is guilty, 
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he is guilty only of the lesser offense. See id. In Cavazos, the court concluded the 

proof necessary to establish murder also includes manslaughter. See id. at 384. But, 

when analyzing the second step, the court concluded that evidence of “[p]ulling out 

a gun, pointing it at someone, pulling the trigger twice, fleeing the scene (and the 

country), and later telling a friend ‘I didn’t mean to shoot anyone’ does not rationally 

support an inference that Appellant acted recklessly at the moment he fired the 

shots.” See id. at 385. Thus, the court concluded evidence did not “rise to [a] level 

that would convince a rational jury to find that if Appellant is guilty, he is guilty of 

only the lesser-included offense.” See id.

Appellant asserts that the evidence shows he “pulled out a gun, pointed it at 

someone, pulled the trigger twice, and fled the scene” similar to the facts in Cavazos. 

He argues nothing in the facts of the case warranted inclusion of the lesser included 

offense of manslaughter, such that it was error for it to have been included in the 

charge. He concludes that “[b]ecause the evidence was insufficient to support a 

conviction of manslaughter, reversal and rendering of acquittal is proper.” 

As noted above, an appellate court renders judgment of acquittal only when a 

trial court’s ruling amounts to de facto acquittal or an appellate court finds the 

evidence was legally insufficient to support the conviction. See O’Reilly, 501 

S.W.3d at 726 (citing Benavidez, 323 S.W.3d at 181). However, we conclude that 

appellant conflates a legal sufficiency review to support a conviction on appeal with 
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the standard for reviewing whether a trial court erred by denying a requested 

instruction on a lesser included offense. 

When reviewing a challenge to the legal sufficiency of the evidence 

supporting a criminal conviction, we view the evidence in the light most favorable 

to the verdict and determine whether a rational trier of fact could have found the 

essential elements of the offense beyond a reasonable doubt. Arbanas v. State, No. 

05-14-01376-CR, 2016 WL 1615592, at *5 (Tex. App.—Dallas Apr. 20, 2016, pet. 

ref’d) (mem. op., not designated for publication) (citing Jackson v. Virginia, 443 

U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011)). 

But, appellant does not cite, and we have not found, any authority to support the 

acquittal of a defendant, much less the reversal of a conviction, where the evidence 

of the defendant’s mental state is that of a more culpable mental state than is 

sufficient to establish the offense’s commission. 

Further, having reviewed the evidence in the light most favorable to the 

verdict, we conclude the record contains sufficient evidence so that a rational trier 

of fact could have found the essential elements of manslaughter beyond a reasonable 

doubt. Several witnesses, including appellant, testified Jobe approached appellant 

at the party on the night of the offense. Jobe demanded to know what appellant was 

doing at the party, referring to appellant with a racial epithet. Appellant pulled a gun 

from his pocket and fired at least two if not as many as six shots at Jobe. Jobe 
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sustained gunshot wounds in his stomach and right arm. Appellant then fled the 

party, and Jobe later died from the gunshot wound to his stomach. 

Because this evidence is sufficient to support appellant’s conviction for 

manslaughter, we overrule his second issue. 

II. Jury Instruction on Aggravated Assault with a Deadly Weapon 

In his third issue, appellant argues the trial court improperly instructed the 

jury in its charge that aggravated assault with a deadly weapon was a lesser included 

offense of manslaughter. 

The charge instructed the jury: 

In the event that you find the defendant not guilty of Murder and 

Manslaughter, you should next consider the lesser included felony 

offense of Aggravated Assault with a Deadly Weapon. 

If you find from the evidence beyond a reasonable doubt that the 

defendant, Michael Roy Sanders Jr., on or about the 1st day of August, 

2020, in Kaufman County, Texas, did then and there intentionally, 

knowingly, or recklessly cause bodily injury to Chad Jobe by shooting 

him, and the defendant did then and there use or exhibit a deadly 

weapon, namely a firearm, during commission of the assault, then you 

will find the defendant guilty of the lesser included felony offense of 

Aggravated Assault with a Deadly Weapon and so say by your 

verdict[.] 

Appellant argues that, since the charge instructed that the culpable mental 

state for aggravated assault included intentionally, knowingly, and recklessly and 

that the only culpable mental state for manslaughter is recklessly, it was error to 

instruct the jury that aggravated assault with a deadly weapon was a lesser included 

offense of manslaughter. He further argues that “the evidence was insufficient to 
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show [his] actions were reckless,” such that “inclusion of the lesser included offense 

of intentional, knowing or reckless aggravated assault was improper.” He requests 

that this Court “reverse the Judgment, render an acquittal and to issue any other relief 

to which Appellant may be entitled.”1

 

An offense is a lesser included offense if “(1) it is established by proof of the 

same or less than all the facts required to establish the commission of the offense 

charged;” or “(3) it differs from the offense charged only in the respect that a less 

culpable mental state suffices to establish its commission.” Cavazos, 382 S.W.3d at 

382 (quoting TEX. CODE CRIM. PROC. art. 37.09). In order to support a conviction 

for manslaughter, the evidence must show a person recklessly causes the death of an 

individual. PENAL § 19.04. In order to support a conviction for aggravated assault 

with a deadly weapon, the evidence must show a person intentionally, knowingly, 

or recklessly causes bodily injury to another and uses or exhibits a deadly weapon 

during the commission of the assault. See id. § 22.02(a)(2). An “intentional and 

knowing” aggravated assault is not a lesser included offense of manslaughter, nor is 

it statutorily includable in manslaughter. Lawson v. State, 64 S.W.3d 396, 397 (Tex. 

Crim. App. 2001). 

1

 Because he seeks reversal of the judgment and render of acquittal, we will address this issue before 

his remaining first and fourth issues. See O’Reilly, 501 S.W.3d at 726 (citing Benavidez, 323 S.W.3d at 

181 (appellate courts render judgment of acquittal only when trial court’s ruling amounts to de facto 

acquittal or appellate courts find evidence was legally insufficient to support convictions); Owens, 135 

S.W.3d at 305 (legal-sufficiency challenge must be addressed first because if evidence is insufficient, 

reviewing court must render judgment of acquittal)) (“We address sufficiency issues first because, in the 

event they are meritorious, we would render a judgment of acquittal rather than reverse and remand.”). 
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Accordingly, we agree with appellant that the charge could be construed to 

instruct the jury that intentional or knowing aggravated assault was a lesser included 

offense of manslaughter. 

Construing the charge in this manner, we assume, without deciding, there was 

jury charge error, and we now analyze the harm, if any, from this error. See Lozano 

v. State, 636 S.W.3d 25, 29 (Tex. Crim. App. 2021) (citing Ngo v. State, 175 S.W.3d 

738, 743 (Tex. Crim. App. 2005)). No one objected to this part of the charge, so 

appellant must show error was “fundamental” in nature and must have caused 

egregious harm to warrant reversal. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. 

Crim. App. 2013). To determine if the jury charge egregiously harmed the 

defendant, we examine the record as a whole, including the entire jury charge, the 

evidence, the contested issues, and the arguments of counsel, and anything else in 

the record that informs our analysis. Lozano, 636 S.W.3d at 29 (citing Almanza v. 

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). Egregious harm exists if the 

error affects the very basis of the defendant’s case, deprives him of a valuable right, 

or vitally affects a defensive theory. Id. (citing Ngo, 175 S.W.3d at 750). The record 

must bear out that appellant suffered actual harm, not theoretical harm, and neither 

party has burden to show harm. Id. (citing Ngo, 175 S.W.3d at 750). 

The jury charge defined murder, manslaughter, and aggravated assault with a 

deadly weapon and instructed the jury to consider first whether appellant was guilty 

of murder as charged in the indictment, and then, if not guilty of murder, whether he 
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was guilty of the lesser included offense of manslaughter, and finally, if not guilty 

of murder or manslaughter, the lesser included offense of aggravated assault with a 

deadly weapon. Because the jury was to consider whether appellant was guilty of 

aggravated assault with a deadly weapon if it did not find him guilty of manslaughter, 

the jury most likely did not consider whether appellant was guilty of aggravated 

assault with a deadly weapon after finding him guilty of manslaughter. 

Appellant’s defensive theory was that he shot Jobe in self-defense. Through 

cross-examination of the medical examiner and the investigating detective, defense 

counsel elicited evidence that Jobe’s blood alcohol content was 0.204, or more than 

twice the legal limit of 0.08, and that Jobe was a similar height as appellant but 

outweighed him by at least seventy pounds. Appellant testified in his defense that 

he had known Jobe since elementary school and that they had been friends through 

high school graduation in 2001, but that their friendship deteriorated after high 

school to the point that when Jobe became “intoxicated[, he would] become 

belligerent, and if I was around, I was basically his target.” Through appellant’s and 

other witnesses’ testimony, the defense offered evidence that on other occasions 

prior to his death, Jobe had acted aggressively towards appellant and had threatened 

to beat him up. Appellant testified that on the night of Jobe’s death, he had no 

intention of killing Jobe and did not have his guard up. He noticed Jobe was 

intoxicated when he arrived at the party and that after Jobe walked around and 

greeted other guests, he walked up to appellant and threatened to beat him up. 
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Appellant said Jobe’s tone was aggressive, and that his response was to try to diffuse 

the situation by raising both hands in the air and asking Jobe if he was going to let 

appellant “make it,” or leave peacefully. According to appellant, the owner of the 

house and at least one other person tried to grab Jobe to keep him from attacking 

appellant. Jobe escaped their grasp and headed towards appellant. Appellant knew 

Jobe “would have made good on his threats . . . probably would have knocked me 

out for real.” Appellant did not intend to kill Jobe when he shot him, “[j]ust prevent 

him from being able to harm me.” Appellant stated he panicked when Jobe attacked 

him and was still in a state of panic when he left the party and went to his home. 

Appellant also testified and provided medical record evidence that he had injured 

his hand in 2017 and suffered nerve pain in and partial loss of use of that hand, 

adding to his concern about his ability to defend himself against Jobe. 

Although the jury likely did not consider the aggravated assault offense before 

concluding appellant was guilty of manslaughter, the charge also includes 

instructions on self-defense, in line with appellant’s defensive theory above. In 

relevant part, the jury charge instructs: 

Now, if you find from the evidence beyond a reasonable doubt that on 

the 1st day of August, 2020, in the County of Kaufman, and State of 

Texas, as alleged in the indictment, did then and there intentionally or 

knowingly caused the death of an individual, namely Chad Jobe, by 

shooting Chad Jobe with a deadly weapon, namely a firearm, you will 

find the defendant guilty of the offense of Murder, or the lesser included 

offense of manslaughter, or the lesser included offense of Aggravated 

Assault with a Deadly Weapon, but you further find from the evidence, 

or you have a reasonable doubt thereof that at that time the defendant 
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was under attack, if any, or attempted attack, if any, from Chad Jobe, 

and that the defendant reasonably believed, as viewed from his 

standpoint, that such deadly force as he used, if any, was immediately 

necessary to protect himself against the use or attempted use of 

unlawful deadly force, and so believing, he intentionally or knowingly 

shot Chad Jobe, if he did, with a deadly weapon, to-wit: a firearm, 

which caused his death, then you will acquit the defendant and say by 

your verdict "not guilty." 

We presume the jury followed the trial court’s instructions. See Reed v. State, 680 

S.W.3d 620, 627 (Tex. Crim. App. 2023) (citing Allison v. State, 666 S.W.3d 750, 

765 (Tex. Crim. App. 2023); Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 

2005)). Therefore, we presume, despite any error in the charge, the jury considered 

appellant’s defensive theory, namely that he acted in self-defense. See id. 

Accordingly, after reviewing the entire record, we cannot conclude the 

complained-of error affected the very basis of appellant’s case or vitally affected his 

defensive theory. See Lozano, 636 S.W.3d at 29 (citing Ngo, 175 S.W.3d at 750). 

Nor can we conclude the same deprived him of any vital right. See id. 

Additionally, we note that both offenses of aggravated assault with a deadly 

weapon and manslaughter are felonies of the second degree and thus subject to the 

same punishment range. See PENAL §§ 12.33, 19.04, 22.02(b). And, both offenses 

included a finding that a deadly weapon was used in the commission of each. Thus, 

any harm from the jury failing to consider aggravated assault with a deadly weapon 

before convicting appellant of manslaughter is theoretical, rather than actual. See 

Lozano, 636 S.W.3d at 29 (citing Ngo, 175 S.W.3d at 750). Accordingly, we 
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conclude that any harm in this jury charge does not constitute egregious harm. See 

id.

We overrule appellant’s third issue. 

III. Self-Defense Instruction in Jury Charge 

In his first issue, appellant urges that the trial court failed to properly instruct 

the jury regarding the issue of self-defense in the application paragraph. He points 

to a note from the jury and the record discussion of same as evidence that “[t]he jury 

was clearly confused.” He also urges the instruction was confusing because it 

“instructed the jury to find him guilty without first taking into consideration selfdefense” and that self-defense was not “mentioned in the charge at all until after the 

application paragraph calling for a verdict.” Finally, appellant notes that the charge 

“neglects to instruct the jury that the State has the burden to disprove the issue of 

self-defense.” 

A jury instruction’s meaning must be taken from the whole charge. See Dailey 

v. State, No. 05-17-00016-CR, 2018 WL 3424361, at *5 (Tex. App.—Dallas July 

16, 2018, pet. ref’d) (mem. op., not designated for publication) (citing Delapaz v. 

State, 228 S.W.3d 183, 212 (Tex. App.—Dallas 2007, pet. ref’d)). Here, the jury 

charge instructed the jury to “consider this charge as a whole.” We assume the jury 

follows the instructions as given. See id. (citing Williams v. State, 937 S.W.2d 479, 

490 (Tex. Crim. App. 1996)). 
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Regarding the order of the instructions, this court has previously considered a 

similarly sequenced charge and concluded it was not erroneous. See Dailey, 2018 

WL 3424361, at *5; Wippert v. State, Nos. 05-96-00573-74-CR, 1998 WL 205798, 

at *1 (Tex. App.—Dallas Apr. 29, 1998, pet. ref’d) (not designated for publication). 

In Wippert, the self-defense instruction followed the application paragraphs for 

aggravated assault and murder. Wippert, 1998 WL 205798, at *1. In that case, we 

concluded that, read as a whole, the charge adequately instructed the jury to acquit 

the defendant if it had reasonable doubt concerning whether he acted in self-defense. 

See id. Similarly, in Dailey, the trial court defined the necessary terms and instructed 

the jury on self-defense in the abstract portion of the instruction. Dailey, 2018 WL 

3424361, at *5. The abstract portion of the instruction was followed by an 

application paragraph applying the law of self-defense to the facts of the case. See 

id. And, significantly, it instructed the jury to acquit appellant if they had a 

reasonable doubt as to whether he acted in self-defense. See id. (citing TEX. PENAL 

CODE § 2.03(d) (if the existence of a defense is submitted to the jury, the court shall 

charge that reasonable doubt on the issue requires acquittal)). We concluded that 

the trial court did not err by placing the self-defense instruction after the murder and 

transferred intent instructions. See id.

As noted by appellant, the charge instructed the jury that if they believed from 

the evidence beyond a reasonable doubt the elements of the offense, they should find 

appellant guilty before instructing the jury on self-defense in a separate later section. 
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In that section, the trial court instructed that if the jury found appellant guilty of any 

of the three foregoing offenses and found from the evidence, or had a reasonable 

doubt thereof, that appellant reasonably believed that such deadly force as he used, 

if any, was immediately necessary to protect himself against the use or attempted 

use of unlawful deadly force, then the jury would acquit appellant. Accordingly, we 

conclude the trial court did not err by placing the self-defense instruction after the 

murder, manslaughter, and aggravated-assault-with-a-deadly-weapon instructions. 

Appellant points to the jury’s notes as evidence of their confusion. The jury 

wrote six notes, two of which were about page 3 of the charge, which included the 

section instructing the jury on self-defense. The first requested twelve copies of that 

page, and the second asked for “explanation or clarity on p3, the circled paragraph.” 

The record does not include a copy of the charge with the circled paragraph, but it 

does include the judge’s following statement to counsel outside the presence of the 

jury. 

I’ve receiv[ed] the following note from the jury. “Can you provide 

explanation or clarity on page 3, the circled paragraph?” Obviously 

that circled paragraph is the paragraph on the presumption of selfdefense and the burden, obviously, the self-defense paragraph that 

we’ve been going over. So I assumed that was the hang-up. 

The only paragraph in the third page of the charge referring to any burden is 

as follows: 

You are instructed with regards to the presumption set forth 

immediately above that: 
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(1) the facts giving rise to the presumption must be proven beyond a 

reasonable doubt; 

(2) that even if such facts are proven beyond a reasonable doubt, you 

may find that the element sought to be presumed exists, but you are not 

bound to so find; 

(3) that even though you may find the existence of such element, the 

State must prove beyond a reasonable doubt each of the other elements 

of the offense charged; and 

(4) if you have a reasonable doubt as to the existence of a fact or facts 

giving rise to the presumption, the presumption fails, and you shall not 

consider the presumption for any purpose. 

We cannot conclude from the jury’s note or the paragraph in the charge that 

the jury was confused as to how to apply the self-defense instruction to their 

consideration of whether to convict or acquit appellant. That note could be construed 

to support appellant’s complaint regarding the charge’s omission that it is the State’s 

burden to disprove that appellant acted in self-defense. However, we have addressed 

a similar complaint and concluded that when, as here, the charge “required the jury 

to acquit appellant if they believed that he was acting in self-defense or the jury had 

a reasonable doubt thereof,” instructed the jury that the burden of proof beyond a 

reasonable doubt was on the State, and contained instructions on the presumption of 

innocence, the failure to instruct the jury on the State’s burden of disproving selfdefense beyond a reasonable doubt was not erroneous. See Goodson v. State, No. 

05-15-00143-CR, 2017 WL 1360193, at *11 (Tex. App.—Dallas Apr. 12, 2017, pet. 

ref’d) (mem. op., not designated for publication) (citing Luck v. State, 588 S.W.2d 

371, 375 (Tex. Crim. App. 1979); Gonzalez v. State, No. 05–13–00630–CR, 2014 
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WL 3736208, at *13–14 Tex. App.–Dallas July 14, 2014, no pet.) (not designated 

for publication) (concluding “the trial court did not err by submitting the jury charge 

without including an instruction that the State was required to disprove the issue of 

self-defense beyond a reasonable doubt,” where charge met requirements of Luck

and penal code section 2.03(d)); Brotherton v. State, 666 S.W.2d 126, 128 (Tex. 

App.—Houston [14th Dist.] 1983, pet. ref’d) (not designated for publication)). 

We overrule appellant’s first issue. 

IV. Assessment of Court Costs 

In his fourth issue, appellant argues the trial court neglected to make an 

indigence inquiry under Article 42.15 of the Code of Criminal Procedure and 

wrongly ordered him to pay costs of court and requests either waiver of his costs or 

remand for an inquiry as to whether he has “sufficient resources or income to 

immediately pay all or part of the fine and costs.” 

The Code of Criminal Procedure in effect at the time of trial provided: 

Notwithstanding any other provision of this article, during or 

immediately after imposing a sentence in a case in which the defendant 

entered a plea in open court . . ., a court shall inquire on the record 

whether the defendant has sufficient resources or income to 

immediately pay all or part of the fine and costs. If the court determines 

that the defendant does not have sufficient resources or income to 

immediately pay all or part of the fine and costs, the court shall 

determine whether the fine and costs should be: (1) subject to 

Subsection (c), required to be paid at some later date or in a specified 

portion at designated intervals; (2) discharged by performing 

community service . . .; (3) waived in full or in part . . .; or (4) satisfied 

through any combination of methods under Subdivisions (1)–(3). 

TEX. CODE CRIM. PROC. art. 42.15(a-1). 
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Initially, we note that this issue presents a question of preservation. Nothing 

in the record indicates appellant objected to or otherwise complained to the trial court 

about its failure to conduct an inquiry. See TEX. R. APP. P. 33.1 (before complaint 

may be presented for appellate review, record must show it was made to trial court 

by timely request, objection, or motion). At least one court of appeals has concluded 

that a defendant’s right to an ability-to-pay inquiry is a category-two Marin right, 

and, therefore, the right’s violation requires no objection to preserve the issue for 

appellate review. See Cruz v. State, No. 14-21-00454-CR, 2023 WL 3236888, at *4 

(Tex. App.—Houston [14th Dist.] May 4, 2023, pet. filed) (op., not yet released for 

publication). 

Assuming, without deciding, we agree that no objection is required to preserve 

this issue for appellate review, we note that the reporter’s record contains no such 

inquiry. Attached to the judgment is an order to withdraw funds, including a finding 

that “the offender is unable to pay the court costs, fees and/or fines and /or restitution 

on this date and that the funds should be withdrawn from the offender’s Inmate 

Account.” That order then requires payment be made out of appellant’s account as 

follows: 

Pay an initial amount equal to the lesser of: 

1) 15% of the account balance up to and including $100, plus 25% of 

any portion of the account balance that is between $100.01 and $500 

inclusive, plus 50% of any portion of the account balance that is 

more than $500; or 
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2) The total amount of court costs, fees and/or fines and/or restitution 

that remains unpaid. 

After the payment of the initial amount, the offender shall pay an 

amount equal to the lesser of: 

1) 10% of each deposit in the offender’s Inmate Account; or 

2) The total amount of court costs, fees and/or lines and/or restitution 

that remains unpaid. 

Payments are to continue until the total amount of the court costs, fees 

and/or fines and/or restitution are paid, or the offender is released from 

confinement. 

Assuming, without deciding, that the foregoing statement regarding the trial 

court’s finding of indigency is insufficient to meet the on-the-record inquiry 

requirement of article 42.15(a-1), we next consider whether any such error requires 

waiver of his fees or remand for an inquiry on the record “whether [appellant] has 

sufficient resources or income to immediately pay all or part of the fine and costs.” 

Non-constitutional error in a criminal case that does not affect the defendant’s 

substantial rights must be disregarded. TEX. R. APP. P. 44.2(b). An error affects a 

substantial right if it had a substantial and injurious effect or influence on the 

verdict. See Cook v. State, 665 S.W.3d 595, 599 (Tex. Crim. App. 2023) (citing 

Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008)). 

Because Article 42.15 guarantees a defendant an on-the-record inquiry into 

“whether the defendant has sufficient resources or income to immediately pay all or 

part of the fine and costs,” appellant might have suffered harm by the omission of 

such an inquiry if the trial court ordered him to immediately pay the fine. However, 
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to the contrary, the withdrawal order states, “The Court finds that the offender is 

unable to pay the court costs, fees, and/or fines and/or restitution on this date and 

that the funds should be withdrawn from the offender’s Inmate Trust Account.” The 

order then provides that a percentage of appellant’s inmate account deposits be 

withdrawn as payment. Thus, even in light of any failure to conduct the on-therecord inquiry mandated by Article 42.15(a-1), the result of such an inquiry, had it 

occurred, is already apparent from the record. 

Accordingly, we conclude appellant has failed to show that his substantial 

rights were affected, and thus has failed to show he was harmed, by the trial court’s 

lack of an express inquiry. See id.; see, e.g., Gates v. State, No. 02-23-00004-CR, 

2024 WL 482436, at *6 (Tex. App.—Fort Worth Feb. 8, 2024, no pet. h.) (mem. op., 

not designated for publication) (holding appellant failed to show reversible harm 

when trial court failed to conduct on-the-record inability-to-pay inquiry but issued 

order to withdraw that the fine and costs should be paid in a specified portion of 

designated intervals from appellant’s inmate trust account until his release, at which 

point, he would be required to proceed to district clerk’s office to make arrangements 

to pay remaining fine, court costs, and reimbursement fees); Gilmer v. State, No. 12-

23-00054-CV, 2023 WL 8103957, at *4 (Tex. App.—Tyler Nov. 21, 2023, no pet.) 

(mem. op., not designated for publication) (concluding that the court did not err in 

denying appellant’s motion to rescind its order to withdraw funds from his inmate 

account when court failed to conduct inability-to-pay inquiry regarding an ordered 
 –21– 

fine “[b]ecause the court determined Gilmer was unable to pay any part of the fine 

immediately, [and thus] Gilmer fails to show that his substantial rights were affected 

by the omission of an ability-to-pay inquiry”).2

We overrule appellant’s fourth issue. 

CONCLUSION

We affirm the trial court’s judgment. 

DO NOT PUBLISH

Tex. R. App. P. 47 

221376F.U05 

 

2

 Moreover, at least one of our sister courts of appeals has held that when an appellant did not argue 

that the trial court’s determination that he should pay the fine and court costs at some later date, as opposed 

to the other options available to it under Article 42.15(a-1)(1), amounted to an abuse of discretion, 

remanding the cause for a gratuitous inquiry when the resultant determination already is apparent from the 

record would amount to an unnecessary exercise and a waste of judicial resources. See Sloan v. State, 676 

S.W.3d 240, 242 (Tex. App.—Tyler 2023, no pet.). 

/Nancy Kennedy/

NANCY KENNEDY 

JUSTICE 
 –22– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

MICHAEL ROY SANDERS, JR., 

Appellant 

No. 05-22-01376-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 86th Judicial 

District Court, Kaufman County, 

Texas 

Trial Court Cause No. 20-50368-86-

F. 

Opinion delivered by Justice 

Kennedy. Justices Nowell and Miskel 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered this 22nd day of February, 2024.