                                   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).
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
                                                 2
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
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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.
                                                       4
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
                                                 5
“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
                                                 6
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.”)).
                                                           7
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.).
                                                   8
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.


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