Richard Vance Santana v. the State of Texas
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Opinion
In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00275-CR
RICHARD VANCE SANTANA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 69th District Court Mooore County, Texas Trial Court No. 6705, Honorable Kimberly Allen, Presiding
July 22, 2025 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
A jury convicted Appellant Richard Vance Santana of burglary of a habitation1 and
sentenced him to 45 years in prison. Through four issues on appeal, Appellant challenges
a deadly weapon finding and certain court costs. We modify the bill of costs and the trial
court’s “Order to Withdraw Funds,” and affirm the judgment.
1 See TEX. PENAL CODE ANN. § 30.02(c)(2). BACKGROUND
Because Appellant does not challenge the sufficiency of the evidence supporting
his conviction, we discuss only the facts necessary to resolve his issues on appeal.
In April 2023, Appellant entered his former girlfriend’s apartment without
permission. Her roommate later arrived and discovered Appellant standing in the kitchen.
According to the roommate’s testimony, Appellant turned the blade of a knife while stating,
“Gotcha now, bitch.” The roommate recognized Appellant as a co-worker and assumed
he would put the knife down. When he raised it again, she believed she would have to
fight for her life. It was undisputed that Appellant was there to confront his former
girlfriend, not her roommate.
ANALYSIS
Deadly Weapon Finding
Appellant challenges the deadly weapon finding, arguing that the law does not
permit “transferring” the use or exhibition of a deadly weapon from an intended victim to
the actual victim. According to Appellant, this creates a question of statewide first
impression.
Appellant’s complaint was not preserved in the trial court. See TEX. R. APP. P.
33.1(a). He argues preservation was unnecessary because he challenges the sufficiency
of evidence supporting the deadly weapon finding—a complaint that can be raised for the
first time on appeal. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (a
defendant need not object at trial to challenge the sufficiency of the evidence supporting
2 a deadly weapon finding); Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001)
(same).
But Appellant’s real challenge is legal,2 not evidentiary. He asks whether the law
authorizes a deadly weapon finding when an accused uses or exhibits a deadly weapon
against someone other than the intended victim. This legal question should have been
preserved in the trial court. See Ruffins v. State, 691 S.W.3d 166, 190 (Tex. App.—Austin
2024, no pet.); Smith v. State, 176 S.W.3d 907, 918 (Tex. App.—Dallas 2005, pet. ref’d)
(holding defendant failed to preserve deadly weapon finding challenge by not objecting
at trial). Appellant made no objection at sentencing and filed no motion for new trial
challenging the deadly weapon finding. We conclude he forfeited appellate review by
failing to present this argument to the trial court first. See TEX. R. APP. P. 33.1(a).
Even if preserved, Appellant’s argument lacks merit. The jury charge and special
issue asked whether Appellant “used or exhibited a deadly weapon, to-wit: a knife during
the commission of the offense.” The jury affirmatively answered this question, and the
trial court pronounced the finding at sentencing and reflected it in the judgment.
The deadly weapon finding concerned the use or exhibition of a deadly weapon
“during the commission of the offense”—burglary of a habitation. As charged, the law
required proof that Appellant used or exhibited a deadly weapon during the commission
of burglary, and the evidence shows he did exactly that. There is no requirement that the
weapon be used against any particular victim or the intended victim.
2 Appellant states in his brief that the question is “whether the law authorizes the deadly weapon
finding under the facts presented.”
3 We overrule Appellant’s first issue.
Assessed Fees and Costs
In his remaining issues, Appellant challenges the imposition of attorney’s fees and
two court costs, seeking modification of the bill of costs and the trial court’s August 7,
2024 “Order to Withdraw Funds.” The State chose not to respond to these issues.
A court of appeals may modify an incorrect judgment when it has the necessary
information to do so. Campos-Dowd v. State, No. 07-20-00342-CR, 2021 Tex. App.
LEXIS 4553, at *7 (Tex. App.—Amarillo June 9, 2021, no pet.) (per curiam). Likewise, an
appellate court has authority on direct appeal to modify a bill of costs independent of
finding an error in the trial court’s judgment. Contreras v. State, Nos. 05-20-00185-CR,
05-20-00186-CR, 2021 Tex. App. LEXIS 10137, at *22–23 (Tex. App.—Dallas Dec. 23,
2021, no pet.) (mem. op. on reh’g, not designated for publication). A defendant may
challenge court costs for the first time on direct appeal when those costs are not imposed
in open court and the judgment lacks an itemization. London v. State, 490 S.W.3d 503,
507 (Tex. Crim. App. 2016).
A. Court Appointed Attorney’s Fees
Appellant complains of the bill of costs and withdrawal order imposing $500 for
attorney’s fees, and $970 for total costs and fees incurred. A public defender represented
Appellant at trial and on appeal. The record establishes that Appellant was indigent; we
find no evidence of any change in financial circumstances.
4 An indigent defendant cannot be ordered to repay court-appointed attorney’s fees
absent proof of a material change in financial circumstances. See TEX. CODE CRIM. PROC.
ANN. art. 26.05(g); Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). We
sustain Appellant’s issue and modify the bill of costs by deleting the assessment of
attorney’s fees. We also therefore reduce the total amount of fees and costs subject to
withholding under the withdrawal order by $500.00.
B. Time Payment Fee
Appellant next challenges the inclusion of a time payment fee of $15 in the bill of
costs and the total required under the withdrawal order. Texas Code of Criminal
Procedure article 102.030(a) requires this fee only if a person pays “any part of a fine,
court costs, or restitution” on or after the 31st day following judgment.
Here, Appellant timely appealed. A defendant’s appeal suspends the duty to pay
fines, court costs, and restitution. Therefore, assessing a time payment fee before the
appellate mandate issues is premature. Dulin v. State, 620 S.W.3d 129, 132–33 (Tex.
Crim. App. 2021). We sustain Appellant’s issue. We delete without prejudice to
subsequent assessment the $15.00 time payment fee included in the bill of costs. See
Groves v. State, No. 07-21-00006-CR, 2021 Tex. App. LEXIS 5478, at *23 (Tex. App.—
Amarillo July 9, 2021, pet. ref’d) (mem. op., not designated for publication).
C. Excessive Precept Charge
Appellant also argues that the bill of costs impermissibly charges $15.00 for a
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