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

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

 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

THE PETITIONER REQUESTS ORAL ARGUMENT

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

CLERK
2

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
3

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
4

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
5

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.
6

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?
7

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-, resultor 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).
8

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.
9

“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. 
10

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
11

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
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). 
2

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. 
3

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 
4

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.
5

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 
6

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. 
7

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.
8

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 resultof-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 
9

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 
10

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 
11

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 courtappointed 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.”
12

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.