NO. 12-12-00271-CR

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DANNY LEE PORTER, § APPEALS FROM THE 114TH

APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Danny Lee Porter appeals his conviction for possession of a controlled substance. 

Appellant raises three issues on appeal. We modify and affirm as modified.

BACKGROUND

Appellant was charged by indictment with the felony offense of possession of a controlled 

substance, namely, methamphetamine, in an amount of one gram or more but less than four 

grams.1 Initially, Appellant pleaded guilty to the offense, but indicated during his plea that he did 

not know he had the methamphetamine on his person. As a result, the trial court refused to accept 

Appellant’s guilty plea, and a bench trial was held. 

The issue at trial was whether Appellant’s possession of methamphetamine was intentional 

or knowing. Ultimately, the trial court found Appellant guilty. Appellant pleaded “true” to the 

State’s two enhancement paragraphs (one enhancement was alleged in the indictment; the other 

was alleged in the State’s pretrial notice of intent to seek higher punishment). The trial court found 

 

1

See TEX. HEALTH & SAFETY CODE ANN. § 481.102(6); § 481.115(c) (West 2010).
2

the enhancements “true,” and assessed punishment at thirty-five years of imprisonment. The trial 

court did not assess a fine and ordered court costs to be paid. The judgment of conviction 

reflects that the amount of court costs assessed is $629.00.

SUFFICIENCY OF THE EVIDENCE 

In his first issue, Appellant contends that the evidence is legally insufficient to prove that 

he intentionally or knowingly possessed the methamphetamine.

Standard of Review

We review a challenge to the legal sufficiency of the evidence in the light most favorable to 

the verdict and determine whether any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 

2789, 61 L. Ed. 2d 560 (1979); see also Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 

2010). We defer to the trier of fact’s responsibility to resolve conflicts in testimony, weigh 

evidence, and draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 

319, 99 S. Ct. at 2789. Each fact need not point directly and independently to the guilt of the 

appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to 

support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This means 

that we may look at events occurring before, during, and after the commission of the offense and 

may rely on actions of the defendant that show an understanding and common design to do the 

prohibited act. Id. 

We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of 

any witnesses, as this is the function of the trier of fact. Ferguson v. State, 313 S.W.3d 419, 423 

(Tex. App.—Houston [1st Dist.] 2009, no pet.). In a bench trial, the trial judge is the sole trier of 

fact and judge of the credibility of the witnesses, and may choose to believe or not believe the 

witnesses, or any portion of their testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. 

Crim. App. 1986); see also Hayes v. State, No. 12-11-00289-CR, 2012 WL 3362732, at *2 (Tex. 

App.—Tyler Aug. 15, 2012, no pet.) (mem. op., not designated for publication). Furthermore, a 

witness may be believed even though some of his testimony may be contradicted, part of his 

testimony accepted, and the rest rejected. Sharp, 707 S.W.2d at 614.

The sufficiency of the evidence is measured by the offense as defined by a hypothetically 
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correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A 

hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does 

not unnecessarily increase the state’s burden of proof or unnecessarily restrict the state’s theories 

of liability, and adequately describes the particular offense for which the appellant was tried. Id.

To support Appellant’s conviction for possession of a controlled substance as alleged in the 

indictment, the State was required to prove beyond a reasonable doubt that Appellant intentionally 

or knowingly possessed methamphetamine in an amount greater than one gram but less than four 

grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).

Applicable Law

“A person acts intentionally, or with intent, with respect to the nature of his conduct . . . 

when it is his conscious objective or desire to engage in the conduct or cause the result.” TEX.

PENAL CODE ANN. § 6.03(a) (West 2011). “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. A person acts knowingly, or with 

knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably 

certain to cause the result.” Id. § 6.03(b). To prove possession of a controlled substance, the 

state must prove beyond a reasonable doubt that the defendant exercised actual care, custody, 

control, or management over the controlled substance knowing that the controlled substance in his 

possession was contraband. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

A defendant’s culpable mental state can be inferred from circumstantial evidence, such as 

his words, acts, and conduct. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); State 

v. Walker, 195 S.W.3d 293, 300 (Tex. App.—Tyler 2006, no pet.). This includes inferences of 

knowledge or intent based on the acts, conduct, and remarks of the accused and from the 

surrounding circumstances. See Ortiz v. State, 930 S.W.2d 849, 852 (Tex. App.—Tyler 1996, no 

pet.) (“proof of knowledge is an inference drawn by the trier of fact from all the circumstances”). 

The Evidence

The sole issue during Appellant’s bench trial was whether Appellant’s possession of the 

methamphetamine was intentional or knowing. Timothy Thompson, a patrol officer for the Smith 

County Sheriff’s Department, testified that on the night of February 27, 2012, he was twice 

dispatched to a residence in a Smith County mobile home park. Officer Thompson testified that 
4

he was dispatched by a general call that was in reference to “special persons.” No action was 

taken by Thompson or any other law enforcement officer because the “special persons” had left the 

residence by the time Thompson arrived. 

Approximately two hours later, Thompson was again dispatched to the same residence. 

When Thompson returned to the mobile home park, another deputy was already on the scene. 

The deputy was speaking to two men, Joshua Bates and Appellant. Thompson arrested Appellant 

because he had outstanding warrants. He conducted a search incident to arrest and found three 

containers on Appellant’s person. These containers were admitted into evidence as State’s 

Exhibits 2A, 2B, and 2C. 

Exhibit 2A was a round metal container that was found in Appellant’s right front blue jeans 

pocket. Methamphetamine was found inside Exhibit 2A. When Thompson discovered the 

methamphetamine, Appellant “sighed.” Thompson testified, and Appellant later confirmed, that 

Appellant remained silent during the search incident to arrest and when he was transported to the 

Smith County Jail. Appellant did not indicate that he was unaware of the contents of the round 

metal container inside his pocket. Thompson’s search of Appellant further revealed marijuana in 

the metal breath mint container marked as Exhibit 2C. Exhibit 2C was found in the same pocket 

as Exhibit 2A. Thompson found Exhibit 2B in the inside pocket of the jacket Appellant was 

wearing. He also found baggies and a marijuana pipe in the same jacket pocket. Thompson 

confirmed that upon their arrival at the Smith County Jail, another pipe was found in Appellant’s 

possession. The State rested its case at the conclusion of Thompson’s testimony. The defense 

then presented evidence from two witnesses.

The defense’s first witness, Joshua Bates, testified that he was with Appellant on the night 

of February 27, 2012, and confirmed that they had been at the location described in Thompson’s 

testimony.2 Bates testified that he and Appellant went to Thomas Holly’s house to “visit with 

some girls,” and were there for two to three hours before they left. Bates testified that there were 

two women, Heather and Tina, at Holly’s house when they arrived. At first, Bates testified that 

nobody was using drugs, but he later testified that he saw Heather smoking methamphetamine. 

According to Bates, Heather was the only one who was smoking methamphetamine; everyone else 

 

2 When Bates testified, he was incarcerated in the Smith County Jail on pending drug charges. Bates also 

had served three years in prison for committing the offense of burglary of a habitation. 
5

was drinking alcohol.

Bates identified Exhibit 2A as the container with the methamphetamine that Holly tried to 

sell him for two hundred dollars when Bates and Appellant were at his house. According to 

Bates, Appellant was not aware of the proposed transaction because Appellant was in a different 

location of the house and he never told Appellant that Holly tried to sell him anything. Sometime 

after Holly tried to sell the methamphetamine, but before Bates and Appellant left, Holly placed 

Exhibit 2A on the kitchen table where Appellant was sitting. Bates testified that there were 

“numerous items” on the kitchen table, including Exhibits 2B and 2C, that Appellant had brought 

with him inside the house. 

Later that night, Bates and Appellant left Holly’s house because they needed cigarettes, 

wanted to go to the beer store, and needed to give a female friend a “ride.” Appellant was at the 

kitchen table when Bates told him to “get everything to the truck” because they were about to 

leave. Appellant then waited in Bates’s pickup truck because Bates was “busy with a female 

friend.” When they left Holly’s house, Appellant was wearing Bates’s jacket and when they 

returned, none of the tins were on the kitchen table. But when Bates and Appellant returned, they 

never went inside Holly’s house because sheriff’s deputies drove up behind them.

After Bates’s testimony concluded, Appellant testified on his own behalf. Appellant 

testified that he went with Bates to Holly’s house in order to meet a girl. Appellant testified that 

he brought his medication, marijuana, marijuana pipe, rolling papers, some cokes, and beer inside 

Holly’s house. Thus, Appellant admitted that Exhibits 2B and 2C and their contents were his. 

By the time Bates told Appellant that they were leaving, Appellant was “mad” because they were 

there to “party” and “meet some girls,” and the girl that he was talking to left and did not return. 

Appellant admitted to smoking a “joint” earlier that night and said that he was distracted when he 

gathered the items on the kitchen table. He explained that he “didn’t pay any attention to what 

was on the table,” because he was “trying to correspond with a young lady and she had [his] 

undivided attention.” According to Appellant, he did not realize that he had the container of 

methamphetamine in his possession. Appellant testified, “I thought I had my [S]koal in my 

pocket.” 

On cross examination, the prosecutor presented Appellant with Exhibit 2A and asked 

whether 2A was the “right size for a can of [S]koal.” Appellant answered by stating that it was 
6

“roughly close.” The prosecutor continued, “Are you sure? A [S]koal can is quite a bit bigger 

than that; is that right?” Appellant responded by admitting that in addition to being distracted, his 

judgment was “possibly” impaired that night (from smoking marijuana). Unlike Bates, Appellant 

testified that he did not see a woman smoking methamphetamine in the house, even though she had 

been smoking at the time Appellant and Bates arrived and was the same woman Appellant had 

been talking with that night. He then went on to say that he “never saw” the container with the 

methamphetamine before, despite the fact that it was inside his jeans pocket along with the metal 

tin that held his marijuana. 

Analysis

The surrounding circumstances leading up to, during, and after Appellant’s arrest, when 

viewed in the light most favorable to the verdict, show that a fact finder could have reasonably 

found that Appellant’s possession of the methamphetamine was intentional or knowing beyond a 

reasonable doubt. See Brooks, 323 S.W.3d at 902; Hooper, 214 S.W.3d at 13.

First, Appellant and Bates were admittedly in a home where at least one person was 

smoking methamphetamine on the night of Appellant’s arrest. The individual identified as 

smoking methamphetamine is the same woman Appellant had been talking with before she went 

into another room (and allegedly never returned). Second, Appellant was in close proximity to 

the container holding the two hundred dollars’ worth of methamphetamine for an extended period 

of time and could have easily looked inside the container without anyone else’s knowing it. 

Third, Appellant went to Holly’s house to “party,” which involved, at minimum, smoking 

marijuana and drinking alcohol. Although Appellant testified that he brought his medication 

because he suffers from anxiety, the fact that he brought several pills with him in a breath mint 

container along with several empty baggies suggests that Appellant may have had other intended 

uses for the medication. Finally, Appellant failed to display any sign of surprise upon the 

officer’s discovery of the methamphetamine. Appellant’s “sigh” and lack of surprise also support 

the inference that Appellant intentionally or knowingly possessed the methamphetamine. See 

Ortiz, 930 S.W.2d at 852. 

Even though Appellant presented testimony that he had no knowledge that 

methamphetamine was inside the container before and while the container was in his pocket, the 

trial court was free to disbelieve his testimony. See Sharp, 707 S.W.2d at 614; Hayes, 2012 WL 
7

3362732, at *2. The circumstances surrounding Appellant’s arrest, when combined with the trial 

court’s credibility determinations, are sufficient to show that Appellant intentionally or knowingly 

possessed the methamphetamine. See TEX. PENAL CODE ANN. § 6.03(a), (b); Hooper, 214 

S.W.3d at 13; King, 895 S.W.2d at 703. Accordingly, we overrule Appellant’s first issue. 

IMPOSITION OF COURT COSTS

In his second and third issues, Appellant contends that the trial court erred by imposing 

court costs that were not supported by the bill of costs and that the evidence is legally insufficient 

to support the trial court’s assessment of court costs.3 

Timeliness of Bill of Costs and Due Process

Appellant argues that Article 103.001 of the Texas Code of Criminal Procedure requires a 

certified bill of costs to be issued “prior to or contemporaneously with the judgment.” Because

the record was supplemented more than one hundred days after the judgment was filed, Appellant 

contends that there is “no indication that the costs were ever brought to the attention of the trial 

judge.”

The code of criminal procedure does not require that a certified bill of costs be filed at the 

time the trial court signs the judgment of conviction or even before a criminal case is appealed. 

See TEX. CODE CRIM. PROC. ANN. arts. 103.001, 103.006 (West 2006); Johnson v. State, No. 

12-12-00289-CR, 2013 WL 3054994, at *1 (Tex. App.—Tyler June 19, 2013, no pet.) (not yet 

released for publication). 

The judgment of the trial court assesses court costs in the amount of $629.00. The bill of 

costs assesses $629.00 in court costs. The judgment contains the trial judge’s signature and 

assesses the amount reflected in the bill of costs. Thus, contrary to Appellant’s assertion, there is 

some indication that the court costs were, in fact, brought to the attention of the trial court. 

Contra Johnson v. State, 389 S.W.3d 513, 515 n.1, 517 (Tex. App.—Houston [14th Dist.] 2013, 

pet. granted) (stating that record contained no indication that computer screen printout reflecting 

 

3 The State contends that the trial court did not err by imposing court costs and argues in the alternative that 

Appellant failed to preserve error on this issue. A contemporary objection in the trial court is not required to 

challenge the assessment of costs. See Cardenas v. State, No. 01-11-01123-CR, 2013 WL 1164365, at *5 (Tex. 

App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (not yet released for publication) (citing Mayer v. State, 309 

S.W.3d 552, 555 (Tex. Crim. App. 2010) (“A claim regarding sufficiency of the evidence need not be preserved for 

appellate review at the trial level[,] and is not waived by the failure to do so.”)).
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bill of costs was brought to trial judge’s attention); but see Ballinger v. State, No. 

12-12-00280-CR, 2013 WL 3054935, at *2 (Tex. App.—Tyler June 19, 2013, no pet.) (not yet 

released for publication) (distinguishing Johnson because clerk produced “actual bill of costs”).

Appellant next makes a due process argument to challenge the timeliness of the bill of 

costs. Specifically, he argues that by not having a timely bill of costs, he “had no ability to 

challenge any legal basis for the court costs assessed. . . .” The record was supplemented with the 

bill of costs on November 2, 2012. Appellant filed his brief on March 1, 2013, and challenges the 

sufficiency of the evidence supporting the trial court’s assessment of costs. Thus, Appellant was 

not deprived of his right to due process. See Cardenas v. State, No. 01-11-01123-CR, 2013 WL 

1164365, at *7 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (not yet released for 

publication) (holding that clerk’s failure to prepare bill of costs before entry of judgment does not 

amount to a due process violation). Accordingly, we overrule Appellant’s timeliness and due 

process arguments.

Sufficiency of Evidence Supporting Court Costs

A challenge to the sufficiency of the evidence supporting court costs is reviewable on

direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 

2011). We measure sufficiency by reviewing the record in the light most favorable to the award. 

Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas, 2013 WL 1164365, at 

*6. Requiring a convicted defendant to pay court costs does not alter the range of punishment, is 

authorized by statute, and is generally not conditioned on a defendant’s ability to pay. See TEX.

CODE CRIM. PROC. ANN. art. 42.16 (West 2006); Armstrong, 340 S.W.3d at 767; see also 

Johnson, 2013 WL 3054994, at *3. 

Some court costs, such as attorney’s fees, may not be assessed against a defendant if he was 

found indigent because his indigence is presumed to continue throughout the remainder of the 

proceedings “unless a material change in [his] financial circumstances occurs.” See TEX. CODE 

CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). If a trial court does not make a determination 

that a defendant’s financial circumstances materially changed that is also supported by some 

factual basis in the record, the evidence will be insufficient to impose attorney’s fees as court costs. 

See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West Supp. 2012); Mayer, 309 S.W.3d 

at 553; Wolfe v. State, 377 S.W.3d 141, 144, 146 (Tex. App.—Amarillo 2012, no pet.).
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Discussion

We have already stated that the trial court’s judgment and the clerk’s bill of costs assess the 

same amount of court costs. We have reviewed each of the fees listed in the bill of costs. Except 

for the item listed as “attorney fees,” all costs and fees are authorized by statute.

The State concedes that the assessment of $300.00 in attorney’s fees is improper. The 

record shows that the trial court found Appellant indigent, continued its finding at the conclusion 

of the sentencing hearing, and appointed counsel to represent him on appeal. There is no 

evidence in the record to rebut the presumption that Appellant’s indigence continued throughout 

the remainder of the proceedings, or that the trial court determined that Appellant had the ability to 

pay attorney’s fees. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g); Wolfe, 377 

S.W.3d at 144, 146. Consequently, the evidence is insufficient to support the imposition of 

attorney’s fees as court costs. The evidence is sufficient, however, to support the imposition of 

$329.00 in court costs. We sustain Appellant’s second and third issues in part.

DISPOSITION

Having overruled Appellant’s first issue and sustained Appellant’s second and third issues 

in part, we modify the judgment of the trial court to reflect that the amount of court costs is

$329.00. We affirm the judgment of the trial court as modified. 

JAMES T. WORTHEN

 Chief Justice

Opinion delivered July 31, 2013.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2013

NO. 12-12-00271-CR

DANNY LEE PORTER,

Appellant

V.

THE STATE OF TEXAS,

Appellee

_____________________________________________________________________________

 Appeal from the 114th Judicial District Court

 of Smith County, Texas. (Tr.Ct.No. 114-0515-12)

_____________________________________________________________________________

THIS CAUSE came on to be heard on the appellate record and the briefs 

filed herein; and the same being inspected, it is the opinion of the Court that the judgment of the 

trial court below should be modified and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the trial court below be modified to reflect that the amount of court costs is $329.00; and as 

modified, the judgment of the trial court is affirmed; and that this decision be certified to the trial 

court below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.