Matthew Ryan Stanberry v. the State of Texas ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00194-CR
MATTHEW RYAN STANBERRY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Randall County, Texas
Trial Court No. 32183A, Honorable Dee Johnson, Presiding
February 9, 2024
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
After we issued our December 6, 2023 opinion in this case, Matthew Ryan
Stanberry, Appellant, moved for rehearing and for en banc reconsideration. We deny
Appellant’s motion for rehearing and request for en banc reconsideration. We withdraw
our opinion and judgment of December 6 and substitute this in its stead.
BACKGROUND
A grand jury indicted Appellant for the third-degree felony offense of stalking.1
Appellant waived a jury trial and pleaded guilty in an open plea. After he was sentenced
to eight years’ confinement in the Texas Department of Criminal Justice, he appealed.
ANALYSIS
In his first issue, Appellant argues that the Texas stalking statute is facially
unconstitutional because it is vague and/or overbroad. Specifically, Appellant asserts that
section 42.072 of the Texas Penal Code does not pass constitutional muster in light of
the United States Supreme Court’s decision in Counterman v. Colorado, 600 U.S. 66,
143 S. Ct. 2106, 2119, 216 L. Ed. 2d 775 (2023), in which the high court vacated a stalking
conviction under a Colorado statute.
The State responds that Appellant failed to preserve this issue for our review. The
State’s argument is well-taken. “[A] defendant may not raise for the first time on appeal
a facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d 428,
434 (Tex. Crim. App. 2009).2 To preserve a complaint for appellate review, a party must
first present “to the trial court a timely request, objection, or motion” stating the specific
grounds for the desired ruling if not apparent from the context. TEX. R. APP. P.
33.1(a)(1)(A). Further, the trial court must have “ruled on the request, objection, or
1 See TEX. PENAL CODE ANN. § 42.072.
2 An exception exists when the challenged statute has already been held unconstitutional.See
Smith v. State, 463 S.W.3d 890, 896–97 (Tex. Crim. App. 2015). However, section 42.072 has not been
held unconstitutional, making the exception inapplicable here.
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motion, either expressly or implicitly; or . . . the complaining party objected to the [trial
court’s] refusal to rule.” TEX. R. APP. P. 33.1(a)(2).
Appellant did not present his complaint about the alleged vagueness or
overbreadth of the statute to the trial court. Therefore, the complaint has not been
preserved for our review.3 TEX. R. APP. P. 33.1(a); Karenev, 281 S.W.3d at 434.
Accordingly, we overrule the first issue.
In his second issue, Appellant contends that the trial court erred when it failed to
provide a separate punishment hearing. Appellant relies on Issa v. State, 826 S.W.2d
159 (Tex. Crim. App. 1992) (per curiam) (en banc), to support his claim that he was
entitled to a separate hearing on punishment. Appellant’s reliance on Issa is misplaced.
Issa does not stand for the absolute right to a separate punishment hearing, but instead
requires that a defendant be given the opportunity to present evidence in mitigation of
punishment if not afforded an opportunity during the adjudication phase. See Pearson v.
State, 994 S.W.2d 176, 178 (Tex. Crim. App. 1999) (en banc); Issa, 826 S.W.2d at 161.
Here, Appellant entered a plea of guilty in a bench trial, which resulted in a unitary
proceeding in which “the issues of guilt and punishment [are] submitted at the same time.”
Barfield v. State, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001) (en banc); see In re State
ex rel. Tharp, 393 S.W.3d 751, 757 (Tex. Crim. App. 2012) (“[B]oth statute and caselaw
are unequivocal that a plea of guilty causes the trial to become unitary.”). Moreover,
Appellant was given ample opportunity to present evidence in mitigation of punishment.
3 Appellant argues that he could not have raised a constitutional argument because the
Counterman decision on which he relies was not decided until after the trial court entered judgment.
However, Appellant directs us to no authority holding that an exception to preservation-of-error
requirements exists under such circumstances.
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He testified regarding his educational and employment background, the circumstances of
the offense, his family’s efforts to intervene in his life, and his desire for therapy. Appellant
told the trial court that he was ashamed of himself and wanted to get help. In closing
arguments, his trial counsel set forth reasons why Appellant was a good candidate for
probation. The record reflects that Appellant was afforded the opportunity to present
punishment evidence in the proceeding. We overrule Appellant’s second issue.
Finally, Appellant claims that the trial court erred in finding that he “does not
presently have sufficient resources or income to immediately pay all or part of the fine
and costs but will, in the future, have the ability to pay the fine and costs at a later date or
at designated intervals.” The finding was reflected in the trial court’s “Indigency Findings
and Orders,” which recited that the trial court “conduct[ed] the inquiry required” by article
42.15(a-1) of the Code of Criminal Procedure. The trial court assessed court costs
totaling $3754 and ordered that Appellant:
shall pay all of the fine and costs to District Clerk/County Clerk or its
designee upon release on parole or completion of his/her sentence. If
[Appellant] is unable to pay all of the fines and costs upon release,
[Appellant] shall, upon release, appear before the District Clerk/County
Clerk or its designee and make arrangements to pay the fine and costs at
designated intervals.
Appellant argues that the trial court abused its discretion by imposing court costs without
conducting an ability-to-pay hearing on the record. The State asserts that the cause
should be remanded for a determination of “whether [Appellant] should or should not be
liable for the court costs levied upon his conviction for stalking.”
4 No attorney’s fees were included.
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The Texas Code of Criminal Procedure provides:
[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. If
the court determines that the defendant does not have sufficient resources
or income to immediately pay all or part of the fine and costs, the court shall
determine whether the fine and costs should be: (1) subject to Subsection
(c), required to be paid at some later date or in a specified portion at
designated intervals; (2) discharged by performing community service . . .;
(3) waived in full or in part . . .; or (4) satisfied through any combination of
methods under Subdivisions (1)–(3).
TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1). Article 42.15(a-1), as amended in 2021,
requires that the inquiry into a defendant’s ability to immediately pay be held on the
record. See Cruz v. State, No. 14-21-00454-CR, 2023 Tex. App. LEXIS 2987, at *5–6
(Tex. App.—Houston [14th Dist.] May 4, 2023, pet. granted).
Here, the record does not show that the trial court conducted an on-the-record
inquiry into Appellant’s ability to immediately pay court costs. Nor does the record indicate
that Appellant waived the requirement for such an inquiry as permitted by article 42.15(a-
2). See TEX. CODE CRIM. PROC. ANN. art. 42.15(a-2). However, the trial court made a
written finding that Appellant did not have sufficient resources or income to pay costs
immediately. Thus, although no on-the-record inquiry was made into Appellant’s ability
“to immediately pay all or part of the fine and costs,” it is evident from the finding that the
trial court determined that Appellant did not have sufficient resources or income to do so.
See, e.g., Sloan v. State, 676 S.W.3d 240, 242 (Tex. App.—Tyler 2023, no pet.) (where
trial court ordered defendant’s fines to be paid upon his release, it must have determined
he lacked resources or income to pay immediately). Because the determination of the
inquiry is apparent from the record, remanding for a “gratuitous inquiry” into Appellant’s
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ability to immediately pay costs would be an “unnecessary exercise and a waste of judicial
resources.” Id.The trial court’s order does not require Appellant to pay costs immediately, but
instead requires payment upon Appellant’s release on parole or completion of his
sentence. This directive is consistent with article 42.15(a-1)(1)’s provision for payment
“at some later date.” If Appellant is unable to pay court costs upon his release, he may
seek relief from the trial court at that time. See TEX. CODE CRIM. PROC. ANN. art. 43.035(a)
(“If a defendant notifies the court that the defendant has difficulty paying the fine and costs
in compliance with the judgment, the court shall hold a hearing to determine whether that
portion of the judgment imposes an undue hardship on the defendant.”). Should the trial
court determine that undue hardship exists, the court shall consider whether the costs
should be satisfied through a different method. See TEX. CODE CRIM. PROC. ANN. art.
43.035(c).
Under these circumstances, we conclude that Appellant has not shown that the
trial court abused its discretion in ordering Appellant to pay costs at a later date.
CONCLUSION
For the reasons set forth above, we affirm the trial court’s judgment.
Judy C. Parker
Justice
Do not publish.
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