Steven Bejarano v. the State of Texas

Opinion filed April 17, 2025

In The

Eleventh Court of Appeals
__________

No. 11-23-00194-CR
__________

STEVEN BEJARANO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR56719

MEMORANDUM OPINION
A jury convicted Appellant, Steven Bejarano, of the first-degree felony
offense of continuous sexual abuse of a young child, Y.S.,1 and assessed his
punishment at sixty years’ confinement. TEX. PENAL CODE ANN. § 21.02(b), (h)
(West Supp. 2024). The trial court sentenced Appellant accordingly. In five issues,

1
We use initials for the complainant and her family members to protect the complainant’s identity.
Appellant challenges the judgment of conviction, arguing that (1) the evidence was
insufficient to support the conviction because Appellant was not properly identified;
(2) the trial court erred by permitting outcry witness testimony from an improper
witness; (3) the trial court failed to conduct an ability-to-pay inquiry before ordering
Appellant to pay court costs; (4) the trial court erred when it ordered Appellant to
pay attorney’s fees despite finding him to be indigent; and (5) the trial court
prematurely assessed a time payment fee. We modify and affirm.
Sufficiency of the Evidence
A. Relevant Background
A grand jury indicted Appellant for continuous sexual abuse of a child
younger than fourteen years of age along with four counts that alleged predicate
offenses. See id. The matter proceeded to trial where the following evidence was
adduced.
Katherine Shores worked as a forensic interviewer and coordinator for the
multidisciplinary team at the Midland Rape Crisis and Children’s Advocacy Center.
Shores interviewed Y.S., a teenager, regarding some acts of sexual abuse that Y.S.
had suffered as a young child. Y.S. identified the person who assaulted her as
“Steven,” a former boyfriend of her older sister. Y.S. told Shores that “Steven raped
her for -- almost every day for years,” beginning when she was four or five until she
was six or seven. Y.S. described to Shores several incidences of sexual abuse by
“Steven.”
During the interview with Shores, Y.S. described “Steven” as “chubby” with
a beard or mustache and tattoos of a cross, roses, skulls, and a person’s name. Some
of the tattoos were on his arms while others were on his back. Y.S. “guessed” the
name Eric was tattooed on “Steven” “because she knew one of his children’s
names”; however, she was not sure. Y.S. also told Shores that “Steven” wore “big
rings” on his hands and reading glasses.
2
Y.S. was born on September 22, 2005, and was a senior in high school when
she testified at trial. Y.S. explained that she knew Appellant because he dated her
sister, J.C., when Y.S. was six or seven years old. At trial, Y.S. described Appellant
as “fat” with dark skin. Y.S. said that her sister “had a type” that had “similar looks”
but confirmed that Y.S. would be “able to tell them apart.” Y.S. was asked if she
saw “Steven” in the courtroom in the following colloquy:
[THE STATE]: And so if you saw Steven again, would you
be able to recognize him?
[Y.S.]: Yes.

[THE STATE]: Do you see Steven in the courtroom?
[Y.S.]: Yes, ma’am.

....
[THE STATE]: And so was that a yes, you see him in the
courtroom?

[Y.S.]: Yes, ma’am.

[THE STATE]: Could you point him out and describe where
he is sitting?

[Y.S.]: Over there. He’s at the corner.
THE COURT: I can’t hear you.

[Y.S.]: At the corner.

[THE STATE]: And there’s three people at that table. Is he
sitting closest to myself, in the middle?

[Y.S.]: He’s at the very end.
[THE STATE]: At the very end closest to the window?

[Y.S.]: Yes, ma’am.

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[THE STATE]: And how sure are you that that’s the same
Steven that your sister dated when you were younger?

[Y.S.]: I’m positive.

[THE STATE]: And is there any way you’re confusing him
with any of her other boyfriends?

[Y.S.]: There’s no way I can confuse him.
Y.S. testified to several incidents of sexual assault by Appellant, including incidents
where Appellant forced her to give him oral sex, touched Y.S.’s vagina with his hand
or hands, and made Y.S.’s vagina contact his penis. Y.S. described Appellant
coming into her room “[a]lmost every night.” Y.S. acknowledged that she did not
previously make outcries regarding Appellant, despite prior involvement from Child
Protective Services, law enforcement, and the Children’s Advocacy Center.
J.C. identified Appellant in the courtroom, and she testified that she dated
Appellant and that he was the only “Steven” that she dated. J.C. explained that she
and Appellant dated for eight months to one year, beginning sometime in 2012.
According to J.C., Appellant was clean shaven when the two dated. J.C. denied that
Appellant wore “big rings on both hands” and could not recall his specific tattoos.
J.C. testified that the father of her children, Alvin, has a nephew named Eric
and that Alvin had roses and skull tattoos. However, J.C. stated that their
relationship ended in 2006 and that Alvin did not come visit, spend the night, or go
to the family’s ranch after their relationship ended.
J.V., Y.S.’s other sister, testified that her mother adopted Y.S. when Y.S. was
about three years old. J.V. was familiar with Appellant through his relationship with
J.C. J.V. believed J.C. and Appellant were dating around the time her son turned
one in March 2014; however, she wavered on the timeline. J.V. believed that
Appellant did not have any facial hair when he dated J.C. J.V. testified that Y.S. had
a bad reputation for truthfulness and that she has had problems lying and stealing.
4
Paula Brookings, a nurse practitioner and sexual assault nurse examiner,
performed a sexual assault exam on Y.S. in March 2021, when Y.S. was
approximately fifteen years old. During the exam, Brookings gathered Y.S.’s
history, which included a description of the alleged assaults and the assailant.
Brookings testified that it is common in such an exam not to identify any visible
injuries, because injuries that occurred years before typically heal within a couple of
days after being incurred.
Midland Police Department Lieutenant Rosemary Sharp previously served as
the sergeant over crimes against persons. Child Protective Services reported the
alleged abuse against Y.S. to Lieutenant Sharp in March 2021. Lieutenant Sharp
had Y.S. go to the police station, where she presented Y.S. with a photograph of
“Steven.”
Lieutenant Sharp identified “Steven” as Appellant during trial. Lieutenant
Sharp described Appellant’s tattoos:
He had a tattoo of a cross on his chest, he had a tattoo of different faces
on his left bicep, and then he had a Joker and a Harley Quinn on his left
arm below his elbow, and then also a Tasmanian Devil, and then he had
a skull and names tattooed on his body.
Photographs of those tattoos were admitted as exhibits. Although Appellant got
some of the tattoos after his relationship with J.C., he acknowledged that the ones
on his arms were present when they dated. However, Lieutenant Sharp noted that
Appellant did not have any tattoos of roses or a tattoo on his back like Y.S. said he
did.
Lieutenant Sharp explained that she did not present Y.S. with a typical
photographic lineup for her to identify “Steven,” but instead just a photo of
Appellant. However, Lieutenant Sharp testified that was because Y.S. was already
familiar with Appellant. According to Lieutenant Sharp, she was not able to identify
any other “Steven” associated with the home where the alleged assaults occurred.
5
B. Standard of Review and Applicable Law
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
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 charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d
729, 732 (Tex. Crim. App. 2018); Brooks, 323 S.W.3d at 895; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010).
Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As such, we must defer to the
factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. The Jackson standard is
deferential and accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from the facts.
Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778.
We may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999). Instead, we determine whether the necessary inferences are based
on the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict. Clement v. State, 248 S.W.3d 791, 796 (Tex. App.—
Fort Worth 2008, no pet.). Therefore, if the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict, and we
6
defer to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d
516, 525–26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
As relevant here, a person commits continuous sexual abuse of a young child
if:
during a period that is 30 or more days in duration, the person commits
two or more acts of sexual abuse, regardless of whether the acts of
sexual abuse are committed against one or more victims; and . . . at the
time of the commission of each of the acts of sexual abuse, the actor is
17 years of age or older and the victim is . . . a child younger than 14
years of age, regardless of whether the actor knows the age of the victim
at the time of the offense.

PENAL § 21.02(b). An “act of sexual abuse” includes the offenses of aggravated
sexual assault of a child and indecency with a child by contact. Id. § 21.02(c)(2),
(4). As charged in this case, a person commits aggravated sexual assault of a child
if the child is younger than fourteen years of age and the person intentionally or
knowingly (1) causes the penetration of the sexual organ of a child by any means,
(2) causes the penetration of the mouth of a child by his sexual organ, or (3) causes
the mouth of a child to contact his sexual organ or the sexual organ of another person.
See id. § 22.021(a)(1)(B), (a)(2)(B) (West 2019). A person commits indecency with
a child by contact if the person engages in sexual contact with a child that is younger
than seventeen years of age. Id. § 21.11(a)(1). As relevant to this case, a person
commits this offense if, with intent to arouse or gratify the sexual desire of any
person, he (1) touches any part of the genitals of a child, (2) touches any part of the
body of a child with his genitals, or (3) causes a child to touch any part of his genitals.
Id. § 21.11(a)(1), (c).
The uncorroborated testimony of a child victim is alone sufficient to support
a conviction for an offense under Chapter 21 or Section 22.021. TEX. CODE CRIM.
PROC. art. 38.07(a), (b)(1) (West 2023); Wishert v. State, 654 S.W.3d 317, 328 (Tex.
App.—Eastland 2022, pet. ref’d); Chapman v. State, 349 S.W.3d 241, 245 (Tex.
7
App.—Eastland 2011, pet. ref’d). Similarly, a child victim’s outcry alone can be
sufficient to support a sexual-assault conviction. Chavez v. State, 324 S.W.3d 785,
788 (Tex. App.—Eastland 2010, no pet.); see also Jones v. State, 428 S.W.3d 163,
169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Identity is an essential element of any criminal offense, and the State must
prove beyond a reasonable doubt that the defendant is the person who committed, or
was a participant in the commission of, the charged offense. Johnson v. State, 673
S.W.2d 190, 196 (Tex. Crim. App. 1984). Direct, in-court identification is the
preferred method to establish a person’s identity as the offender. See, e.g., Hime v.
State, 998 S.W.2d 893, 896 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
Where an equivocal in-court identification is corroborated by other evidence, the
defendant’s conviction may be affirmed. Prihoda v. State, 352 S.W.3d 796, 803
(Tex. App.—San Antonio 2011, pet. ref’d) (citing Anderson v. State, 813 S.W.2d
177, 179 (Tex. App.—Dallas 1991, no pet.)). In such a case, the witness’s
uncertainty of the person’s identity goes to the weight of the witness’s testimony,
not its admissibility. Id. However, identity may be proven by direct or
circumstantial evidence, or by reasonable inferences from the evidence admitted at
trial. Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018) (citing
Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009)). Eyewitness
testimony is not necessary. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App.
1986). When a defendant contests the identity element of the offense, we are
mindful that identity may be proven by direct evidence, circumstantial evidence, or
even inferences. Ingerson, 559 S.W.3d at 509 (citing Gardner, 306 S.W.3d at 285);
Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d).
Although the preferred procedure is for the prosecutor to request notation in the
record of an in-court identification, it is not required to sustain a jury’s guilty verdict.
Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. [Panel Op.] 1981).
8
C. Analysis
In Appellant’s first issue, he argues that the evidence was insufficient to
support his conviction because the State failed to produce legally sufficient evidence
to demonstrate that he—as opposed to possible others—committed the alleged acts
of sexual abuse. Appellant does not challenge any other element of the offense.
Appellant primarily focuses on Y.S.’s testimony that she did not remember what the
perpetrator’s face looked like when he dated J.C., that J.C. had other boyfriends that
matched Y.S.’s description of the perpetrator, that another boyfriend had tattoos that
matched those described by Y.S., and that “the record does not establish that [Y.S.]
identified [Appellant] on the record as the man who committed the acts of alleged
abuse against her.”
First, we note that the State did not ask that the record reflect Y.S.’s
identification of Appellant as the man who sexually assaulted her. But the record
does reflect that Y.S. identified her sexual assailant, that being a man in the
courtroom that was sitting in a specific location. The jury was able to witness this
identification and give it the weight it deemed necessary. See Jackson, 443 U.S. at
319; Zuniga, 551 S.W.3d at 732; Clayton, 235 S.W.3d at 778. Although it is the
preferred method, the State was not required to request a notation that the record
reflect Y.S. identified Appellant as “Steven,” the man who assaulted her. See
Rohlfing, 612 S.W.2d at 601.
Moreover, the evidence supports the jury’s determination that Appellant was
properly identified as the assailant, “Steven.” See Ingerson, 559 S.W.3d at 509;
Rohlfing, 612 S.W.2d at 601. Although there were some discrepancies, there were
several similarities between Appellant’s and Y.S.’s description of the man who
sexually assaulted her, including specific tattoos. For example, Y.S. described
tattoos with skulls and names, which appeared on Appellant’s body. See Roberson,
16 S.W.3d at 167. When asked about confusing Appellant as “Steven” for one of
9
J.C.’s other boyfriends, Y.S. insisted that “[t]here’s no way [she] can confuse him.”
Further, according to Y.S.’s sister, she had only dated one person named “Steven.”
Although Appellant posits that Y.S. could have been sexually assaulted by J.C.’s ex,
Alvin, J.C. testified that Alvin did not come visit, spend the night, or go to the
family’s ranch after their relationship ended, which was before Y.S. was adopted. It
was within the jury’s purview to resolve any conflicts in Y.S.’s testimony and
identification of her assailant—a resolution that we decline to disturb with the
evidence before us. See Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732;
Clayton, 235 S.W.3d at 778. We conclude that the State presented sufficient
evidence from which a rational trier of fact could have logically inferred and found
beyond a reasonable doubt that Appellant committed the offense. See Ingerson, 559
S.W.3d at 509; Rohlfing, 612 S.W.2d at 601. Appellant’s first issue is overruled.
Outcry Witness
In his second issue, Appellant argues that the trial court committed reversible
error by permitting Shores to testify as the outcry witness pursuant to Article 38.072
of the Texas Code of Criminal Procedure, because Shores was not the first person to
whom Y.S. disclosed the sexual assault. See CRIM. PROC. art. 38.072 (West Supp.
2024).
A. Relevant Background
Prior to trial, the State filed a notice of intent to use certain hearsay statements
made by Y.S., which identified two possible witnesses: Selene Chavez and Shores.
See id. art. 38.072, § 2(b) (requiring pretrial notice). The notice summarized Y.S.’s
statement to Chavez as: “My sister’s ex-boyfriend raped me.” Y.S.’s statement to
Shores, however, was much more detailed, including descriptions of specific
instances, time periods, and locations of various sexual assaults. The summary of
Y.S.’s disclosure to Shores spanned more than two pages, single spaced.

10
The trial court heard evidence and argument as to the State’s outcry witness
outside the presence of the jury. The State called Shores, who described her forensic
interview with Y.S. wherein Y.S. disclosed details of the sexual assaults. According
to Shores, Y.S. stated that she did not go into detail with Chavez, her Child Protective
Services caseworker, regarding the sexual assault.
The State argued that although Y.S. initially disclosed an assault to Chavez,
Y.S. went into far more detail with Shores, thus making Shores the appropriate
outcry witness. Appellant, on the other hand, argued that Shores was not the first
person over the age of eighteen to whom Y.S. disclosed the sexual assault and was
thus not an appropriate outcry witness. The trial court found Shores to be reliable
based on time, content, and circumstances of the statement and permitted her to
testify.
B. Standard of Review and Applicable Law
Article 38.072 of the Code of Criminal Procedure permits outcry statements
by certain victims of child abuse to be admitted during trial, despite the hearsay rule,
if the provisions of that article are met. See CRIM. PROC. art. 38.072. “The statement
must be ‘more than words which give a general allusion that something in the area
of child abuse is going on’; it must be made in some discernible manner and is event-
specific rather than person-specific.” Lopez v. State, 343 S.W.3d 137, 140 (Tex.
Crim. App. 2011) (quoting Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App.
1990)). “Hearsay testimony from more than one outcry witness may be admissible
under Article 38.072 only if the witnesses testify about different events,” as there
may be only one outcry witness per event. Id. A trial court has broad discretion to
determine the admissibility of outcry evidence, and we will not disturb its
determination as to the proper outcry witness absent a showing in the record that the
trial court clearly abused its discretion. See Garcia, 792 S.W.2d at 92.

11
The testimony of a second outcry witness is not admissible, however, when
the witness merely provides additional details regarding the same instance of sexual
abuse. See Brown v. State, 189 S.W.3d 382, 387 (Tex. App.—Texarkana 2006, pet.
ref’d) (“[B]efore more than one outcry witness may testify, it must be determined
the outcry concerned different events and was not simply a repetition of the same
event told to different individuals.”); Tear v. State, 74 S.W.3d 555, 559 (Tex. App.—
Dallas 2002, pet. ref’d); see also McDaniel v. State, No. 10-18-00353-CR, 2020 WL
1429675, at *1 (Tex. App.—Waco Mar. 23, 2020, no pet.) (mem. op., not designated
for publication).
C. Analysis
Appellant argues that the trial court improperly designated Shores as the
outcry witness because the State failed to demonstrate that Chavez, being the
recipient of the initial outcry, was not the proper outcry witness. According to
Appellant, “[he] raised enough evidence for the record to show that there is a
likelihood that Chavez could be the proper outcry witness. It is the State’s burden
to prove that an outcry statement is admissible under [Article] 38.072, not just pick
and choose which witness to call for this purpose.”
Appellant relies on Long v. State, wherein the Texas Court of Criminal
Appeals held that, as the proponent of the evidence, the State has the burden to
satisfy each element of the predicate for admissibility under Article 38.072. 800
S.W.2d 545, 548 (Tex. Crim. App. 1990). Appellant does not complain about any
predicate of Article 38.072 except that Shores may not have been the first person to
whom Y.S. outcried.
The notice provided by the State discloses only that Y.S. told Chavez, “My
sister’s ex-boyfriend raped me.” While we agree with Appellant that “raped” is more
than a general allusion to some form of child abuse, we disagree that it contains the
requisite information to describe the multiple alleged acts of offense in some
12
discernible manner. See CRIM. PROC. art. 38.072, § 2(a); Lopez, 343 S.W.3d at 140.
In Garcia, the Court of Criminal Appeals held that it was not error for the trial court
to rule that a second witness was the outcry witness where “the record [was] void as
to any specific details of the statements made to [the first witness] and as to any
description of the alleged offenses made to [the first witness] by the complainant.”
792 S.W.2d at 91. Similarly, the record here is devoid of any specific details other
than the single statement made to Chavez within the summary provided by the State,
and Shores’s testimony that Y.S. made some unspecified outcry to Chavez before
her forensic interview. See id. On its face, the statement to Chavez makes no
reference to repeated and factually different sexual assaults. In contrast, Y.S.
provided Shores with specific details such as time, place, and manner of multiple
alleged acts of sexual abuse. See CRIM. PROC. art. 38.072, § 2(a); Lopez, 343 S.W.3d
at 140.
Appellant contrasts the facts in this case with those in Hayden v. State,
wherein the record “fail[ed] to show the extent of the complainant’s conversation
with [the first witness].” 928 S.W.2d 229, 231 (Tex. App.—Houston [14th Dist.]
1996, pet. ref’d). Appellant contends that Y.S.’s use of the word “raped” provides
sufficient detail to show that Y.S. discussed the allegations in some discernable
manner. However, in Hayden, the child testified that she first told her school
counselor of the sexual abuse, which the appellate court held was not sufficiently
detailed. See id. Such is the case here: although Y.S. used the word “raped,” there
is not sufficient detail in that statement for a factfinder to understand the nature of
the alleged offense, or whether it was a single incident or multiple and varied acts
over time. See id. (“Although [the first witness] was the first person the complainant
told about the sexual abuse, there is no evidence that the complainant described to
her the details of the alleged abuse.”) (collecting cases). Hayden thus supports our
conclusion here. See id. Accordingly, we conclude that the trial court did not abuse
13
its broad discretion by allowing Shores to testify as the outcry witness. See CRIM.
PROC. art. 38.072, § 2(a); Garcia, 792 S.W.2d at 92. Appellant’s second issue is
overruled.
Court Costs
A. Relevant Background
In its judgment of conviction, the trial court ordered Appellant pay to the State
“all costs” it incurred in the prosecution. However, the trial court did not conduct a
hearing, which Appellant contends was statutorily mandated, to assess Appellant’s
ability to pay. See CRIM. PROC. art. 42.15(a-1).
B. Standard of Review and Applicable Law
Article 42.15(a-1) reads, in pertinent part: “Notwithstanding any other
provision of this article, during or immediately after imposing a sentence in a
case . . . 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.” Id. Since
the parties’ briefing, the Texas Court of Criminal Appeals has determined that the
ability-to-pay inquiry pursuant to Article 42.15(a-1) is a forfeitable right. Cruz v.
State, 698 S.W.3d 265, 268–69, 271 (Tex. Crim. App. 2024) (“[Marin v. State, 851
S.W.2d 275 (Tex. Crim. App. 1993)] sorted our error-preservation rules into three
categories: (1) absolute requirements and prohibitions, (2) rights that must be
implemented unless expressly waived, and (3) rights that are implemented upon
request or else forfeited. . . . [The ability-to-pay inquiry] is a category-three right.”).
The Cruz court reasoned that because the ability-to-pay inquiry is “not fundamental
to the adjudicatory process,” “[r]equiring an objection to enforce it would not
undermine ‘the public’s perception of the fairness of our judicial system’ or
engender ‘suspicions’ about the system’s ‘fairness and accuracy.’” Id. at 269, 271
(quoting Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014)). The court
ultimately held that an appellant forfeits his or her right to an ability-to-pay inquiry
14
by not timely objecting at or near the time of sentencing to the trial court’s failure to
make such inquiry of the defendant on the record. Id. at 271; see also Fisher v. State,
No. 05-22-00848-CR, 2024 WL 4284616, at *3 (Tex. App.—Dallas Sept. 25, 2024,
no pet. h.) (mem. op., not designated for publication) (observing “the recent decision
by the Texas Court of Criminal Appeals that a defendant can forfeit his right to an
on-record inquiry regarding his ability to pay court costs if he does not object during
or at the conclusion of the sentencing trial”); Upson v. State, No. 07-24-00008-CR,
2024 WL 4206809, at *3 (Tex. App.—Amarillo Sept. 16, 2024, no pet.) (mem. op.,
not designated for publication) (“In the present case, [a]ppellant did not object to the
trial court’s failure to inquire, on the record, into [a]ppellant’s present ability to pay
court costs. . . . As such, we must conclude that [a]ppellant failed to preserve her
objection to the trial court’s failure to conduct an on-the-record inquiry into her
present ability to pay court costs.”).
C. Analysis
Relying on the Fourteenth Court of Appeals opinion in Cruz v. State,
Appellant argues that the right to a hearing on an ability to pay is a category two
Marin right that must be affirmatively waived. 694 S.W.3d 1, 6 (Tex. App.—
Houston [14th Dist.] 2023), aff’d, 698 S.W.3d 265 (Tex. Crim. App. 2024).
However, as noted, the Texas Court of Criminal Appeals concluded that it was a
category three Marin right, a decision that we are bound by. See Cruz, 698 S.W.3d
at 269; Kendrick v. State, No.11-23-00146-CR, 2025 WL 51819 at *2 (Tex. App.—
Eastland Jan. 9, 2025, no pet.) (mem. op., not designated for publication); see also,
e.g., Corley v. State, No. 08-23-00318-CR, 2024 WL 4497982, at *9 (Tex. App.—
El Paso Oct. 15, 2024, no pet.) (mem. op., not designated for publication)
(“Therefore, because [a]ppellant forfeited his right to an ability-to-pay inquiry on
the record by failing to request a hearing, he failed to preserve error.” (citing Cruz,
698 S.W.3d at 271)); Sikalasinh v. State, No. 07-24-00018-CR, 2024 WL 4575121,
15
at *5 (Tex. App.—Amarillo Oct. 24, 2024, no pet.) (mem. op., not designated for
publication) (“We do not reach the merits of her [ability to pay] arguments, however,
because the Texas Court of Criminal Appeals recently held that ‘because the [ability-
to-pay] inquiry is not fundamental to the functioning of our adjudicatory system, [an
appellant] forfeit[s] his complaint when he fail[s] to object in the trial court.’”
(quoting Upson, 2024 WL 4206809, at *2)).
It is undisputed that Appellant did not request an ability-to-pay inquiry or
object to the lack of an inquiry on the record. Consequently, Appellant has forfeited
his complaint on appeal. See Cruz, 698 S.W.3d at 271; see also Washington v. State,
No. 13-24-00034-CR, 2024 WL 4707820, at *7 (Tex. App.—Corpus Christi–
Edinburg Nov. 7, 2024, no pet.) (mem. op., not designated for publication) (“[The
appellant] did not object below to the trial court’s failure to conduct an ability-to-
pay inquiry prior to its assessment of these costs. Accordingly, he has forfeited his
right to complaint on appeal of the court’s failure to conduct this inquiry.”). We
overrule Appellant’s third issue.
Attorney’s Fees and Time Payment Fee
In his fourth and fifth issues, Appellant argues that the trial court erred by
ordering him to pay court-appointed attorney’s fees and a time payment fee,
respectively, despite previously finding him indigent. The State agrees with
Appellant.
“[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 v. State, 309 S.W.3d 552, 556 (Tex. Crim.
App. 2010). “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.” CRIM. PROC.
art. 26.04(p). A trial court may assess court-appointed attorney’s fees against a
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defendant, but only “[i]f the judge determines that a defendant has financial
resources that enable the defendant to offset in part or in whole the costs of the legal
services provided.” Id. art. 26.05(g). Absent a determination by the trial court that
a defendant is able to repay the costs of court-appointed legal counsel, “there [is] no
factual basis in the record to support a determination that Appellant [can] pay the
fees.” Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013). Without a
factual basis supporting the order, we must reform the judgment to delete the order
to repay court-appointed attorney costs. See id. at 252.
As for the time payment fee, the Texas Court of Criminal Appeals recently
held that:
[t]he pendency of an appeal stops the clock for purposes of the time
payment fee. Consequently, the assessment of the time payment fees in
Appellant’s case is premature, and the fees should be struck in their
entirety, without prejudice to them being assessed later if, more than 30
days after the issuance of the appellate mandate, the defendant has
failed to completely pay any fine, court costs, or restitution that he
owes.
Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021).
Because Appellant was initially determined to be indigent and nothing in the
record supports the trial court’s implicit determination that he subsequently had the
financial resources to pay, we sustain Appellant’s fourth issue. See Cates, 402
S.W.3d at 252. Because Appellant appealed the trial court’s judgment, the clock on
Appellant’s duty to pay the time payment fee was stopped—thus, we sustain
Appellant’s fifth issue. See Dulin, 620 S.W.3d at 133. Accordingly, we modify
(1) the trial court’s judgment to clarify that “all court costs, fines, fees, [and]
assessments” does not include court-appointed attorney’s fees, and (2) the district
clerk’s amended bill of costs to delete the time payment fee, without prejudice to
such a fee being assessed at a later date, and the court appointed attorney’s fees
previously assessed against Appellant. See id.; Cates, 402 S.W.3d at 252.
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This Court’s Ruling
As modified, we affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE

April 17, 2025
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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