CourtListener 10775847•Daniel Clayton Stogner v. the State of Texas
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NUMBER 13-24-00077-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DANIEL CLAYTON STOGNER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 26TH DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Cron and Fonseca
Memorandum Opinion by Justice Cron
A jury convicted appellant Daniel Clayton Stogner of possession of a controlled
substance, methamphetamine, in an amount of four grams or more but less than 200
grams, and he was sentenced to five years’ imprisonment. See TEX. HEALTH & SAFETY
CODE § 481.115(d); TEX. PENAL CODE § 12.33. In five issues, Stogner argues that: (1) the
evidence is legally insufficient to support his conviction; (2) the trial court erred in
assessing court costs against him because he is indigent; (3) the trial court erred in
assessing a fine against him because he is indigent; (4) the trial court erred in assessing
courts costs without a hearing; and (5) the trial court erred in assessing a fine without a
hearing. We affirm. 1
I. BACKGROUND
A. Jury Trial 2
Around 11:00 p.m. on April 10, 2022, Deputy Mark Bell with the Williamson County
Sheriff’s Office (WCSO), a K9 handler, conducted a traffic stop on Stogner for failure to
use his turn signal “four to five” times while changing lanes on a motorcycle. Stogner
came to stop about a “half a mile” from where Deputy Bell turned his lights on. Ashley
Pile was the rear passenger on the motorcycle, but she initially provided the deputy with
a different last name. After running their information, Deputy Bell learned that Pile had an
active felony warrant for fraudulent use or possession of identifying information, and she
was subsequently placed under arrest.
Another officer, Detective John Barlett, arrived on scene to assist, and Pile was
placed in his patrol unit because Deputy Bell’s “K9 partner” occupied the entire backseat
of his patrol unit. Prior to placing Pile in Detective Bartlett’s patrol unit, Deputy Bell
1 This case is before the Court on transfer from the Third Court of Appeals pursuant to a docket-
equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating
the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from
one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by
the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP. P. 41.3.
2 This section is a summary of the testimony given at the jury trial held on December 1, 2023,
December 4, 2023, and December 5, 2023.
2
searched her and her purse 3 but did not locate any contraband. Detective Bartlett,
however, located a knife, lighter, and flashlight on her person.
Deputy Bell explained that Stogner consented to a search of the motorcycle and
that when he started his search, he initially did not see anything incriminating. He
explained that Detective Barlett, on the other hand, “observed a black box” or container
that was affixed to the motorcycle with “hook and pile Velcro” underneath the left
handlebar. While Detective Barlett was looking at the motorcycle, he was speaking to
Stogner who admitted to having “a small amount of marijuana on his person.”
When he first observed the black box, Deputy Bell noticed “a bunch” of Ziploc bags
stuffed inside, and once it was removed from the motorcycle, he pulled the contents out
and “noticed [a] crystalized substance in those bags.” Based on his training and
experience, he believed the substance to be methamphetamine. He conducted a field
test on one of the baggies, and he obtained a presumptive positive result for
methamphetamine. Additionally, he explained that a bag pulled from the black box
contained a substance he identified as marijuana.
Deputy Bell explained that, when approaching a motorcycle during a traffic stop,
he is paying attention “[t]o movements, mostly hands.” He also indicated he never saw
Pile put her hands towards the black box where the methamphetamine was located.
Additionally, Deputy Bell explained that Stogner acknowledged the motorcycle belonged
to him even though it was registered to his ex-wife.
Deputy Bell explained that he arrested Stogner (as opposed to Pile) for possession
3 We note that her purse was filled with a number of items.
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of methamphetamine because “where they were sitting on the motorcycle, it was in his
direct reach. It was actually just under his left hand. And then he—he took ownership of
the motorcycle, and he was driving the motorcycle.” He also agreed that Stogner had
admitted to smoking marijuana, and marijuana was located within the black box. The
baggies and black box were submitted into the evidence locker, and Deputy Bell
requested drug recognition and weight recognition testing to be done by the Texas
Department of Public Safety (DPS) crime lab. He also requested fingerprint testing on the
black box.
On cross, Deputy Bell conceded that Stogner could have discarded the black box
before or after his lights were activated. He also agreed that he did not see Stogner make
any gestures towards the black box. But he could not recall whether Stogner appeared to
be staring at the black box. On redirect, Deputy Bell again explained that during the traffic
stop, he did not see Pile’s hands go near the black box and clarified that “she would have
had to lean forward to reach that area. So I did not see that.”
Footage from Deputy Bell’s body camera worn during the traffic stop was admitted
into evidence. 4
Detective Bartlett testified that he provided back up for Deputy Bell, and he
obtained verbal consent from Stogner to search the motorcycle where he located a black
box with his flashlight. He said the black box was located “[i]n between the handlebars
and the windshield, underneath the handlebars.” He explained that, since he rides
motorcycles pretty frequently, he recognized the black box should not be there, and he
4 We observe that portions of the video are difficult to hear because of background wind noise.
Additionally, not all of the interactions between the individuals at the scene were captured on Deputy Bell’s
body camera.
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pulled it off and opened it up. He continued, “[I] could immediately smell marijuana. It had
rolling papers and little baggies of white substance.”
After a search incident to arrest of Stogner, Detective Bartlett located
approximately $1,300, a marijuana grinder, and rolling paper. Stogner was placed in the
back of his patrol car where Pile was located. He explained that he likes to put people in
the backseat together because they will often talk, and the vehicles have cameras. The
State offered a video showing Stogner and Pile talking in the back of Detective Bartlett’s
patrol unit. Detective Bartlett testified that in the video, Stogner told Pile that “[h]e should
have ran.” Additionally, he testified as follows:
[State]: Right then when she, quoting her, said, “I did not have that
much s[***],” what did the defendant say?
[Detective Bartlett]: He said that he did.
Detective Bartlett conceded that if Stogner knew the black box was there and that it
contained methamphetamine, he could have attempted to discard it.
Harmoni Whittenton, a crime scene specialist with the WSCO, testified she was
requested by Deputy Bell to see if she could locate any latent prints on four baggies, and
no latent prints were located. She also testified that she believed crime scene specialist
Carlos Cardona processed “two joint-rolling papers and a black plastic container” for
latent prints, but to her knowledge, he did not locate any either.
Kiersten Drake testified that she is employed with the DPS crime laboratory in
Austin as a “seized drug analyst.” She received at least four items for potential testing but
only did testing on one. The testing identified methamphetamine, and the weight was
“9.89 grams, plus or minus 0.06 grams.” After her testimony, the State rested.
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The defense called one witness, Justin Staggs. Staggs testified that he hired
Stogner for a short time to remodel a “barndominium.” He explained he paid him in cash,
and he always paid him in cash as it was a side job. He confirmed that the last time he
paid him was April 8 or April 9, 2022, and he paid him $1,500. Thereafter, the defense
rested.
The jury found Stogner guilty and assessed punishment at five years’
imprisonment and a fine in the amount of $2,500. After the jury was discharged, the trial
court proceeded to orally pronounce his sentence in relevant part as follows: “[M]r.
Stogner, in accordance with the jury’s verdict, at this time I sentence you to five years
confinement in the institutions division of the Texas Department of Criminal Justice. I
assess a fine of $2,500 and costs of court. I give you credit for two days previously
served.”
B. Indigence, Judgment & Bill of Costs
Prior to trial, Stogner was appointed counsel after completing an affidavit of
financial condition. And after his trial, he was appointed appellate counsel for this appeal.
On the same day Stogner was sentenced, a judgment of conviction was entered
reflecting, among other things, a $2,500 fine and $290 in court costs. In relevant part it
also stated, “Upon release from confinement, the Court ORDERS Defendant to proceed
without unnecessary delay to the District Clerk’s office, or any other office designed by
the Court or the Court’s designee, to pay or to make arrangements to pay any fine, court
costs, and restitution due.”
Additionally, that same day a “Williamson County Certified Bill of Cost, Criminal
Case 22-0630-K26” was filed that showed $290 in “TOTAL MANDATORY COURT
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COSTS.” Under “FELONY,” it listed “State Consolidated CC $185.00” and “Local
Consolidated CC $105.00.” This appeal followed.
II. POSSESSION OF A CONTROLLED SUBSTANCE
By his first issue, Stogner argues there was insufficient evidence to establish
beyond a reasonable doubt that he knowingly possessed a controlled substance. He
contends that he “has listed the potential affirmative links, and the evidence defeating
those links one at a time.” Building on this premise, Stogner concludes that the totality of
the circumstances fails to link him to the methamphetamine. The State responds that the
evidence, when viewed in the proper light, supports a reasonable inference that Stogner
possessed the methamphetamine.
A. Standard of Review
Unless it is supported by legally sufficient evidence, a criminal conviction cannot
stand. David v. State, 663 S.W.3d 673, 678 (Tex. Crim. App. 2022) (citing Jackson v.
Virginia, 443 U.S. 307, 318 (1979)). “Evidence supporting a conviction is legally sufficient
if a rational trier of fact could have found each element of the offense beyond a reasonable
doubt.” Id. (citations omitted). Conversely, “evidence is insufficient to support a conviction
if, considering all the record evidence in the light most favorable to the verdict, no rational
factfinder could have found each essential element of the charged offense was proven
beyond a reasonable doubt.” Kiffe v. State, 361 S.W.3d 104, 107 (Tex. App.—Houston
[1st Dist.] 2011, pet ref’d).
When reviewing the sufficiency of the evidence, we “view[] the evidence in the light
most favorable to the prosecution” to determine whether “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson,
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443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (deciding
that the Jackson v. Virginia “legal-sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable
doubt”). To make this determination, “[w]e view the evidence in the light most favorable
to the verdict and consider all of the admitted evidence, regardless of whether it was
properly admitted.” Ogbuehi v. State, 706 S.W.3d 689, 694 (Tex. App.—Austin 2025, no
pet.) (quotation omitted). Also, “[i]n reviewing the sufficiency of the evidence, we should
look at ‘events occurring before, during, and after the commission of the offense and may
rely on actions of the defendant which show an understanding and common design to do
the prohibited act.’” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting
Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)).
The standard of review on appeal is the same for both direct and circumstantial
evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (citation
omitted). “[C]ircumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor,’ and ‘can be sufficient’ on its own ‘to establish guilt.” Ogbuehi, 706
S.W.3d at 694 (quoting Kiffe, 361 S.W.3d at 108). “The trier of fact is the exclusive judge
of the credibility and weight of the evidence and is allowed to draw any reasonable
inference from the evidence so long as it is supported by the record.” David, 663 S.W.3d
at 678 (citation omitted). “[A] factfinder may disbelieve some or all of a witness’s
testimony, even when that testimony is uncontradicted.” Hernandez v. State, 161 S.W.3d
491, 501 (Tex. Crim. App. 2005). Juries, however, are not permitted to draw conclusions
based on mere speculation. Hooper, 214 S.W.3d at 16 (“Speculation is mere theorizing
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or guessing about the possible meaning of facts and evidence presented.”). “When the
record supports conflicting inferences, we presume that the jury resolved the conflicts in
favor of the verdict and defer to that determination.” Merritt v. State, 368 S.W.3d 516,
525–26 (Tex. Crim. App. 2012).
In determining whether the evidence is legally sufficient, we compare the evidence
produced at trial to “the essential elements of the offense as defined by the hypothetically
correct jury charge.” David, 663 S.W.3d at 678 (citation omitted). 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
defendant was tried.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “The
‘law as authorized by the indictment’ includes the statutory elements of the offense and
those elements as modified by the indictment.’” David, 663 S.W.3d at 678 (citation
omitted).
B. Applicable Law
Under a hypothetically correct jury charge, the State had to prove beyond a
reasonable doubt that (1) Stogner; (2) knowingly or intentionally; (3) possessed; (4) at
least four grams but less than 200 grams of a controlled substance. See TEX. HEALTH &
SAFETY CODE § 481.115(d). “‘Possession’ means actual care, custody, control, or
management.” Id. § 481.002(38); TEX. PENAL CODE § 1.07(a)(39); see also Sheppard v.
State, No. 03-10-00868-CR, 2012 WL 6698963, at *3 (Tex. App.—Austin 2012, no pet.)
(mem. op., not designated for publication) (“To support a conviction for possession of a
controlled substance, the State must prove, first, that the defendant exercised care,
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custody, control, or management over the substance and, second, that he knew the
matter possessed was contraband.”) (citation omitted). “When an accused is not in
exclusive possession and control of the place where the contraband is found, it cannot
be concluded or presumed that [he] had knowledge of or control over the contraband
unless there are additional independent facts and circumstances connecting or linking
[him] to the knowing possession of contraband.” Allen v. State, 249 S.W.3d 680, 690 (Tex.
App.—Austin Jan. 27, 2017, no pet.) (citations omitted). The accused’s connection with
the drug must be more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.
Crim. App. 1995). “Mere presence at the location where the contraband is found is
insufficient by itself to establish possession of contraband.” Allen, 249 S.W.3d at 691
(citations omitted). But presence or proximity when combined with other evidence, direct
or circumstantial, may be sufficient to establish actual care, custody, or control of the
contraband. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).
Non-exclusive relevant factors that may, alone or in combination, sufficiently
establish knowing possession have been identified as:
(1) the defendant’s presence when a search is conducted; (2) whether the
contraband was in plain view; (3) the defendant’s proximity to and the
accessibility of the narcotic; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed
other contraband or narcotics when arrested; (6) whether the defendant
made incriminating statements when arrested; (7) whether the defendant
attempted to flee; (8) whether the defendant made furtive gestures;
(9) whether there was an odor of contraband; (10) whether other contraband
or drug paraphernalia were present; (11) whether the defendant owned or
had the right to possess the place where the drugs were found; (12) whether
the place where the drugs were found was enclosed; (13) whether the
defendant was found with a large amount of cash; and (14) whether the
conduct of the defendant indicated a consciousness of guilt.
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Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (quoting Evans, 202 S.W.3d
at 162 n.12).
“Although these factors can help guide a court’s analysis, ultimately the inquiry
remains that set forth in Jackson: Based on the combined and cumulative force of the
evidence and any reasonable inferences therefrom, was a jury rationally justified in finding
guilt beyond a reasonable doubt?” Id. Furthermore, it is “[t]he logical force of the
circumstantial evidence, not the number of links, that support’s a jury’s verdict.” Evans,
202 S.W.3d at 166.
C. Analysis
Viewing the evidence in the light most favorable to the verdict, we note that it was
undisputed that Stogner was the driver of the motorcycle, and Pile, seated behind him,
was the passenger. See Tate, 500 S.W.3d at 414 (listing among factors, proximity and
presence); see also Jenkins v. State, No. 02-19-00241-CR, 2020 WL 3969861, at *5 (Tex.
App.—Fort Worth, June 11, 2020, no pet.) (mem. op., not designated for publication)
(deciding that the evidence was sufficient to support the jury’s determination that
appellant possessed methamphetamine and that he knew it was methamphetamine
where, although appellant was not the sole occupant of the motorcycle, “he was driving
the motorcycle [and] his thirteen-year-old passenger was sitting behind him on the rear
seat”).
Deputy Bell testified that Stogner was in proximity to the methamphetamine
because “where they were sitting on the motorcycle, it was in his direct reach. It was
actually just under his left hand.” See Tate, 500 S.W.3d at 414 (listing proximity as a
factor). The jury could have reasonably inferred that Pile did not place the
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methamphetamine in the black box based on Deputy Bell’s testimony that he did not see
her hands go near the black box and that “she would have had to lean forward to reach
that area.” See id. (finding sufficient evidence after explaining in part “the jury could have
reasonably inferred that the passengers did not put the syringe in the compartment while
[the appellant] and [the detective] were at the rear of the vehicle based on [the detective’s]
testimony that the front-seat passenger never reached over to the compartment and that
the back-seat passenger could not reach it”).
Moreover, Deputy Bell testified while the motorcycle was registered to Stogner’s
ex-wife, Stogner “took ownership of the motorcycle, and he was driving” it. See id. (listing
among factors, whether the defendant owned or had the right to possess the place where
the drugs were found).
Further, marijuana and rolling papers were located in the black box and Stogner
admitted to having “a small amount of marijuana on his person.” See id. (listing among
factors, whether the defendant possessed other contraband or narcotics when arrested);
Allen, 249 S.W.3d at 701 (“Possession of another type of contraband than that charged
is one of the potential factors that may be considered in determining a link between the
accused and the contraband in question.”). In other words, while Stogner denied
ownership of all of the narcotics in the black box, he admitted possessing an illicit drug
(albeit not methamphetamine) at the scene where drugs were located. See Tate, 500
S.W.3d at 414. Further, Detective Bartlett located “a marijuana grinder, and rolling paper”
on Stogner. See id. He also located $1,300 on Stogner, and while Staggs testified that he
had paid Stogner $1,500 a day or so before Stogner’s arrest, the jury heard this testimony,
and they were free to disbelieve all or some of Stagg’s testimony. See id. (listing among
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factors, whether the defendant was found with a large amount of cash); Hernandez, 161
S.W.3d at 501; see also Larios v. State, No. 13-15-00022-CR, 2015 WL 9487107, at *4
(Tex. App.—Corpus Christi–Edinburg Dec. 29, 2015, no pet.) (mem. op., not designated
for publication) (concluding that the evidence was sufficient to support appellant’s
conviction where, although appellant and her family offered viable explanations for her
possession of more than $4,000, the “the jury [already] heard all of this evidence” and
was entitled to disbelieve it).
Additionally, although it is undisputed that Stogner did not flee after he came to a
stop, he was also captured on video telling Pile that “[h]e should have ran.” See Tate, 500
S.W.3d at 414. Stogner was also captured responding to Pile after she denied “having
that much s[***] in her bag” saying, “I did.” From this, the jury could have reasonably
inferred that Stogner was referring to the methamphetamine even though he did not
specifically reference it. See id. And while Stogner argues that his fingerprints were not
located on the exterior of the black box or its contents, that no DNA testing was done,
that he did not stare at or make any gestures toward the black box, that he had no
paraphernalia associated with the use of methamphetamine on his person, that he did
not appear to be under of the influence of methamphetamine, and that he was not in a
suspicious area, “the absence of certain links do[es] not weigh against those that are
present.” See Ferguson v. State, 313 S.W.3d 419, 426 (Tex. App.—Houston [1st Dist.]
2009, no pet); see also Ezebunwa v. State, No. 03-14-00682-CR, 2016 WL 4527598, at
*2 (Tex. App.—Austin Aug. 25, 2016, no pet.) (mem. op., not designated for publication)
(“The number of links or factors is not dispositive.”); Briscoe v. State, No. 13-20-00445-
CR, 2022 WL 710083, at *5 (Tex. App.—Corpus Christi–Edinburg Mar. 10, 2022, no pet.)
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(mem. op., not designated for publication).
We are limited to determining whether under the evidence presented, viewed in a
light most favorable to the prosecution, any reasonable juror could have concluded that
Stogner knowingly or intentionally exercised actual care, custody, or control, over the
methamphetamine. See Jackson, 443 U.S. at 326 (emphasis in original). And when
measured by the elements of a hypothetically correct jury charge, we hold the evidence
was legally sufficient such that a rational juror could have concluded that Stogner
knowingly or intentionally possessed at least four grams of methamphetamine. See TEX.
HEALTH & SAFETY CODE §§ 481.115(d), 481.002(38); TEX. PENAL CODE § 1.07(a)(39).
Accordingly, we overrule Stonger’s first issue.
II. COURT COSTS
By his second issue, Stogner complains that the trial court erred by assessing court
costs against him because he is indigent. In his reply, he clarifies that there is insufficient
evidence to assess court costs against him.
A. Applicable Law
“[W]e review the assessment of court costs on appeal to determine if there is a
basis for the cost, not to determine if there was sufficient evidence offered at trial to prove
each cost, and traditional Jackson evidentiary-sufficiency principles do not apply.”
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). The Code of Criminal
Procedure requires that a judgment order a defendant to pay court costs. See TEX. CODE
CRIM. PROC. ANN. art. 42.16 (applicable when the punishment is something other than a
fine); see also Ketchum v. State, No. 08-22-00114-CR, 2022 WL 16758491, at *2 (Tex.
App.—El Paso, Nov. 8, 2022, no pet.) (mem. op., not designated for publication) (“Thus,
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upon the defendant’s conviction, the imposition of courts costs is mandatory.”) (citation
omitted). But only statutorily authorized court costs may be assessed against a criminal
defendant. Johnson, 423 S.W.3d at 389; Martinez v. State, 507 S.W.3d 914, 916 (Tex.
App.—Waco 2016, no pet.) (“The allowable types and amounts of costs are set by statute,
and no cost may be imposed unless it is ‘expressly provided by law.’”) (citation modified).
Court costs are not punitive. Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).
Court costs, as reflected in a certified bill of costs, need neither be orally pronounced nor
incorporated by reference in the judgment to be effective. See Armstrong v. State, 340
S.W.3d 759, 767 (Tex. Crim. App. 2011) (“This is because court costs do not ‘alter the
range of punishment to which the defendant is subject, or the number of years assessed’;
and, thus, are not part of the sentence.”).
B. Analysis
At the outset, we will assume without deciding that Stogner can raise this complaint
for the first time on appeal despite his failure to object when the trial court orally
pronounced that he would be assessed an unspecified amount of court costs. See
Johnson, 423 S.W.3d at 390 (“[W]e conclude that a criminal defendant need not preserve
an objection in the trial court to raise a claim challenging the bases for the imposition of
court costs for the first time on appeal.”); see also Diaz v. State, No. 03-15-00539-CR,
2016 WL 1084398, at *6 (Tex. App.—Austin Mar. 17, 2016, no pet.) (mem. op., not
designated for publication) (“Because court costs do not need to be incorporated into a
judgment by reference or orally pronounced, defendants may challenge the imposition of
court costs for the first time on appeal.”); Cruder v. State, No. 03-24-00328-CR, 2025 WL
1583514, at *7–8 (Tex. App.—Austin June 5, 2025, no pet.) (mem. op., not designated
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for publication) (assuming appellant’s issue could be raised that the trial court erred by
assessing costs against him after explaining that it was not entirely clear that appellant
can present this claim on appeal because he did object below and the trial court informed
the parties during sentencing that it would be imposing the costs at issue, and appellant
had an opportunity to object).
Although Stogner argues that the imposition of court costs against him is precluded
because he is indigent, see TEX. CODE CRIM. PROC. ANN. art. 26.04(p), several appellate
courts, including this Court and the transferor court, albeit in unpublished cases, have
upheld the imposition of court costs on indigent defendants. See, e.g., Dority v. State,
631 S.W.3d 779, 793 (Tex. App.—Eastland 2021, no pet.) (recognizing that mandatory
court costs can be recovered from an indigent defendant but not a court reporter record
fee); Allen v. State, 426 S.W.3d 253, 259 (Tex. App.—Texarkana 2013, no pet.) (“We
conclude the more persuasive authority indicates that a trial court can order an indigent
defendant to pay court costs provided payment is not demanded before the trial court
proceedings have concluded.”); see also Osuna v. State, No. 03-18-00239-CR, 2018 WL
3233733, at *12 (Tex. App.—Austin July 3, 2018, no pet.) (mem. op., not designated for
publication) (concluding that the trial court did not err in assessing court costs against
appellant despite his financial indigency); Hernandez-Prado v. State, No. 03-15-00289-
CR, 2016 WL 3144098, at *12 (Tex. App.—Austin May 26, 2016, pet ref’d) (mem. op., not
designated for publication) (“We agree with those cases standing for the proposition that
an indigent defendant can be assessed court costs.”); Ketchum, 2022 WL 16758491, at
*3 (“Because nothing prohibits imposing court costs on an indigent defendant, and
because Appellant directs us to no statute or other authority prohibiting the imposition of
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court costs on an indigent defendant, we conclude that the trial court did not err by doing
so.”); Rivers v. State, No. 13-16-00407-CR, 2017 WL 2492610, at *1–2 (Tex. App.—
Corpus Christi–Edinburg June 8, 2017, no pet.) (mem. op., not designated for publication)
(overruling appellant’s first issue that trial court erred in assessing court costs against her
because she is indigent). Accordingly, we conclude that the trial court did not err in
assessing court costs “[u]pon [his] release from confinement” against Stogner despite his
presumed indigency. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Osuna, 2018 WL
3233733, at *10 n.9 (noting that appellant does not challenge the basis of the court costs
imposed, but rather the imposition of court costs at all given his indigence). Because it
appears Stogner is also challenging the basis of the court costs imposed, we turn now to
address that issue.
Here, the record contains a certified bill of cost for a total of $290 in court courts
consisting of $185.00 for a “State Consolidated CC” and $105.00 for a “Local
Consolidated CC.” See TEX. LOC. GOV’T CODE §§ 133.102(a)(1) (stating that “a person
convicted of an offense shall pay as a court cost, in addition to all other costs: . . . $185
on conviction of a felony”), 134.101(a) (“A person convicted of a felony shall pay $105 as
a court cost, in addition to all other costs, on conviction.”); Bradshaw v. State, 707 S.W.3d
412, 416–20 (Tex. Crim. App. 2024) (clarifying that the state consolidated court costs of
$185 in Texas Local Government Code § 133.102(a)(1) should apply regardless of the
date of the offense if the defendant was convicted after January 1, 2020); see also Joseph
v. State, No. 01-23-00937-CR, 2025 WL 714982, at *3 (Tex. App.—Houston [1st Dist.]
Mar. 6, 2025, no pet.) (mem. op., not designated for publication) (en banc, per curiam)
(explaining that although Bradshaw only addressed the $185 state consolidated court
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cost, the same rationale applies to the $105 local consolidated court cost). Thus, because
the certified bill of costs reflects statutorily-mandated court costs and Stogner was
convicted after January 1, 2020, we conclude there is a sufficient basis for the
assessment of $290 in court costs against Stogner, and we overrule his second issue.
III. FINE
By his third issue, Stogner complains that the trial court erred by assessing a fine
against him because he is indigent. In his reply, he again clarifies that there is insufficient
evidence to assess him a fine.
A. Applicable Law
When a defendant is fined, “the judgment shall be that the defendant pay the
amount of the fine and all costs to the state.” TEX. CODE CRIM. PROC. ANN. art. 42.15(a).
A jury is not authorized to impose court costs by their verdict in a criminal case, but it can
assess fines in assessing punishment. See id. art. 37.07(1)(a)–(b); see also TEX. PENAL
CODE §§ 12.01–.43; see also Curry v. State, No. 13-24-00429-CR, 2025 WL 1523280, at
*3 (Tex. App.—Corpus Christi–Edinburg May 29, 2025, no pet.) (mem. op., not
designated for publication). “A fine is not a court cost or fee; it is part of the punishment.”
Anastassov v. State, 664 S.W.3d 815, 823 (Tex. Crim. App. 2022); see Armstrong v.
State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (explaining that because “[f]ines are
punitive and they are intended to part of the convicted defendant’s sentence”, they
“generally must be orally pronounced in the defendant’s presence”); see also Ferguson
v. State, No. 06-22-00043-CR, 2022 WL 4180471, at *2 (Tex. App.—Texarkana Sept. 6,
2022, no pet.) (mem. op., not designated for publication) (“Fines are punitive, and the
punishment statute does not exclude indigent defendants from the optional fine.”).
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B. Analysis
Again, assuming without deciding that Stogner can raise this complaint for the first
time on appeal, Stogner does not direct us to any authority concluding the trial court erred
by imposing a fine on an indigent defendant. See generally Johnson, 423 S.W.3d at 390;
see also Ferguson, 2022 WL 4180471, at *2 (analyzing appellant’s argument that the fine
was improperly assessed because she was undisputably indigent without discussing
preservation). Indeed, we have found a number of cases which support leaving the fine
intact, despite Stogner’s claim of indigency. See, e.g., Cates v. State, 402 S.W.3d 250,
251–52 (Tex. Crim. App. 2013) (deleting only the $1,039.75 in court-appointed attorney
fees from an order assessing court costs in which the total implicitly included a $5,000
fine); Wright v. State, 930 S.W.2d 131, 133–34 (Tex. App.—Dallas 1996, no pet.)
(reasoning in the context of an Eighth Amendment challenge that “[t]he fact that appellant
may be indigent for purposes of retaining trial and appellate counsel . . . does not compel
the conclusion that he is indigent for purposes of paying his fine in twenty dollar monthly
installments”); see also Gates v. State, No. 02-23-00004-CR, 2024 WL 482436, at *1, 6
(Tex. App.—Fort Worth Feb. 8, 2024, no pet.) (mem. op., not designated for publication)
(overruling appellant’s challenge to the assessed fine and court costs based in part on
his assertion of “his indigence at the time of sentencing”); Amparan v. State, No. 11-21-
00162-CR, 2022 WL 17684377, at *4 (Tex. App.—Eastland Dec. 15, 2022, no pet.) (mem.
op., not designated for publication) (reasoning again when considering appellant’s eighth
amendment prohibition against excessive fines argument that “[b]ecause the trial court
was not required to make a special accommodation or consideration of Appellant’s
indigence when it assessed the $10,000 fine, the order to withdraw funds does not impose
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excessive terms on Appellant’s obligation to pay the fine”); Ferguson, 2022 WL 4180471,
at *2 (overruling appellant’s challenge to the fine based on her indigence). Accordingly,
we leave intact the $2,500 fine, both orally pronounced in Stogner’s presence and
reflected in the judgment, to be paid “upon [his] release from confinement.” See TEX.
CODE CRIM. PROC. ANN. art. 42.01, § 1(9) (providing that a written judgment shall reflect
any fine assessed in conjunction with any term of confinement). We overrule his third
issue.
IV. INABILITY-TO-PAY INQUIRY
In his fourth and fifth final points, Stogner argues the trial court assessed costs and
a fine without a hearing on the record about his ability to pay. After his brief and reply brief
were filed, Stogner notified this Court by letter that the Texas Court of Criminal Appeals
did not adopt the reasoning in Cruz v. State, 694 S.W.3d 1 (Tex. App.—Houston [14th
Dist.] 2023, pet. granted), which he heavily relied upon in his briefing. See 698 S.W.3d
265 (Tex. Crim. App. 2024). Although Stogner maintains that the high court’s decision in
Cruz v. State did not impact his first three issues, he effectively concedes that it impacted
his last two issues. See id. We agree.
Stogner has not directed us to any request made by him of an ability-to-pay inquiry
on the record nor to an objection to the lack of such an inquiry as to the imposition of court
costs or a fine. See TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1) (“Notwithstanding any
other provision of this article, during or immediately after imposing a sentence in a case
in which the defendant entered a plea in open court . . . , a court shall inquire on the record
whether the defendant has sufficient resources or income to immediately pay all or part
of the fine and costs.”); see also TEX. R. APP. P. 33.1 (concerning preservation of error for
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appeal). Instead, he contends “[t]he record fails to reflect a hearing to assess Stogner’s
ability to pay the court costs and the fine.”
In Cruz v. State, the Texas Court of Criminal Appeals held that, because “[a]n
ability-to-pay inquiry is not fundamental to the adjudicatory system,” it is a Marin category-
three right—i.e., it must be “implemented upon request or else forfeited.” 698 S.W.3d at
268–69 (claiming on appeal that after “his jury assessed him a fine, the trial court failed
to conduct an ability-to-pay inquiry”); see also Esparza v. State, No. 13-23-00550-CR,
2025 WL 797503, at *7 (Tex. App.—Corpus Christi–Edinburg Mar. 13, 2025, no pet.)
(mem. op., not designated for publication) (overruling issue that the trial court erred by
assessing $315 in court costs against him without holding an ability-to-pay hearing on the
record because appellant forfeited his right by failing to request one in the trial court). As
such, we conclude Stogner has forfeited his right to an on-the-record article 42.15 ability-
to-pay hearing by failing to request one in the trial court. See Cruz, 698 S.W.3d at 271;
TEX. R. APP. P. 33.1(a). We overrule his fourth and fifth issues.
V. CONCLUSION
We affirm the trial court’s judgment.
JENNY CRON
Justice
Do not publish
TEX. R. APP. P. 47.2(b)
Delivered and filed on the
15th day of January, 2026.
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