Marty Shea Montgomery v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00249-CR

MARTY SHEA MONTGOMERY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 084256-A-CR, Honorable Dee Johnson, Presiding

April 2, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Marty Shea Montgomery, Appellant, appeals his conviction for burglary of a

building, a state jail felony. 1 In two issues, Appellant challenges the sufficiency of the

evidence supporting his conviction and the imposition of prospective attorney’s fees. We

modify and affirm as modified.

1 TEX. PENAL CODE § 30.02(a), (c)(1).
BACKGROUND

On the morning of June 21, 2023, Danny Davidson received a notification on his

cell phone from a motion-activated game camera he had installed on property he owned

in Potter County. Photographs from the camera showed two men standing near storage

containers Davidson kept on the property. At trial, Davidson identified Appellant as one

of the men. One photograph showed Appellant at the back of the storage container by

the locking mechanism. Another depicted the other man carrying items out of the storage

container. Davidson got in his car and made the short drive to his property, arriving within

two or three minutes. He saw a white van parked outside his fence and observed the two

men “carrying stuff from the storage containers to the van.” Davidson called 911. The

two men got into the white van and started to leave, but Davidson placed his car at the

entrance to the property to prevent their departure. He exited his car and told the men

not to leave. The van then turned and crossed a ditch to avoid Davidson, who pursued

them on the Interstate-40 service road. As he followed the van, Davidson saw items

being thrown from the window on its passenger side, which was occupied by Appellant.

Davidson identified items that were thrown onto the roadway as his property. He

continued to follow the van until it was stopped by law enforcement. Davidson returned

to his storage containers and saw that the locks he used to secure them had been cut off,

apparently by a grinder. Officers recovered a cordless Ryobi grinder, with the name

“Marty” on it, from the back seat of the van.

When questioned by law enforcement, Appellant denied any involvement with the

driver of the van and with the theft itself. He stated that he had simply asked for a ride to

get a Coke but that the driver made a detour to Davidson’s property. According to

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Appellant, the men were on the property to turn around and they never got out of the

vehicle. Appellant was arrested and charged by indictment with burglary of a building.

The matter proceeded to trial, at which Appellant entered a plea of “not guilty.” The jury

found Appellant guilty as charged. The trial court assessed punishment at twenty-four

months’ confinement, and this appeal followed.

ANALYSIS

Sufficiency of the Evidence

In his first issue, Appellant contends that the evidence is insufficient to support his

conviction for burglary. Specifically, Appellant argues that the State proved neither his

intent to commit theft nor his entry into Davidson’s building. We review Appellant’s

sufficiency of the evidence challenge under the standard enunciated in Jackson v.

Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under that standard, we must

determine whether, considering all the evidence in the light most favorable to the verdict,

the jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson, 443

U.S. at 319; Brooks, 323 S.W.3d at 899. We defer to the jury’s determinations regarding

the witnesses’ credibility and the weight to be given their testimony. Brooks, 323 S.W.3d

at 901.

A person commits burglary of a building if, without the owner’s effective consent,

the person enters a building with intent to commit a felony, theft, or an assault. TEX.

PENAL CODE § 30.02(a)(1). Evidence of entry is not required to sustain a burglary

conviction. Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006). Further, if a

jury is instructed under the law of parties, as it was here, the State does not have to prove
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a defendant himself entered the property. Powell v. State, 194 S.W.3d 503, 507 (Tex.

Crim. App. 2006).

Davidson testified that he saw Appellant and another man present at the crime

scene. Appellant had no permission to be on the property, to enter the storage container,

or to help someone else enter the storage container. Davidson saw the men carry items

from his storage containers to a white van. He further testified that the door to the storage

container, which he had locked using a disc lock, was open, and that the lock appeared

to have been cut with a grinder tool. A grinder labeled with Appellant’s name was found

inside the van. Davidson saw items of his personal property being thrown from the

passenger side of the van as he followed it. He identified Appellant as the person

occupying the passenger seat of the van.

Given the evidence, we conclude a rational jury could have inferred Appellant

entered the storage container or that Appellant was at least a party to the burglary of

Davidson’s building. See Wilkerson v. State, 874 S.W.2d 127, 129 (Tex. App.—Houston

[14th Dist.] 1994, pet. ref’d) (under law of parties, person can be guilty of burglary if he

acts together with another in commission of offense, even if he does not personally enter

burglarized premises).

Similarly, the evidence at trial supports the conclusion that Appellant had the

requisite intent to commit theft. A photograph depicted Appellant standing by the storage

container’s locking mechanism. The lock was later found to have been cut, apparently

with a grinder, and a grinder with Appellant’s name on it was found in the getaway van.

Additionally, Davidson saw Appellant carrying items from the storage container to the van.

As Davidson pursued the two men, Appellant threw Davidson’s property out of the moving

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van, which could indicate consciousness of guilt. See Jaramillo v. State, No. 07-15-

00192-CR, 2016 Tex. App. LEXIS 3685, at *3 (Tex. App.—Amarillo Apr. 8, 2016, no pet.)

(mem. op., not designated for publication) (defendant’s attempt to distance himself from

jacket containing drugs could reasonably be interpreted as consciousness of guilt or

consciousness of contraband). A rational jury could have inferred Appellant acted with

the intent to commit theft.

Thus, viewing the evidence in the light most favorable to the verdict, we find a

rational factfinder could have found, beyond a reasonable doubt, that Appellant

burglarized the building. We overrule Appellant’s first issue.

Attorney’s Fees

In his second issue, Appellant argues that the provision in the Bill of Cost allowing

for prospective recovery of attorney’s fees should be deleted. The State agrees with

Appellant’s contention.

The record reflects that Appellant was determined to be indigent and that no

intervening material change of circumstances was established. A trial court errs if it

orders reimbursement of court-appointed attorney’s fees without record evidence

demonstrating a defendant’s financial resources to offset the costs of legal services.

Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). Although the Bill of Cost

does not make a present assessment of attorney’s fees, it allows for the assessment of

such fees at a future date by stating that “other fees may be applied at a later date,” and

specifically referencing payment of a court-appointed attorney as such a potential fee.

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We delete a statement in a certified bill of costs authorizing the assessment of

attorney’s fees at a later date when such an assessment is unsupported by evidence of

a material change in the defendant’s financial circumstances. See, e.g., Rosales-Ayala

v. State, No. 04-15-00226-CR, 2016 Tex. App. LEXIS 1306, at *2–3 (Tex. App.—San

Antonio Feb. 10, 2016, no pet.) (mem. op., not designated for publication) (deleting

assessment of attorney’s fees from bill of cost in amount “to be determined” where trial

court did not order defendant to pay fees for appointed counsel and no evidence of any

material change in financial circumstances was presented); see also Woodard v. State,

No. 07-23-00377-CR, 2024 Tex. App. LEXIS 4642, at *9–10 (Tex. App.—Amarillo July 2,

2024, no pet.) (mem. op., not designated for publication) (reforming judgment to delete

provision to pay court-appointed attorney’s fees in absence of evidence defendant had

ability to pay). Nothing in the record indicates that the trial court found Appellant had the

financial resources to pay attorney’s fees. Therefore, we sustain Appellant’s second

issue.

CONCLUSION

We overrule Appellant’s first issue and sustain his second. Accordingly, we modify

the Bill of Cost to delete the entry related to an “Order to Pay court appointed attorney.”

In all other respects, the judgment is affirmed.

Judy C. Parker
Chief Justice

Do not publish.

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