Fredrick Calicutt v. the State of Texas ( 2024 )

Opinion filed July 25, 2024
In The
Eleventh Court of Appeals
__________
No. 11-22-00295-CR
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FREDRICK CALICUTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-20-0255-CR
MEMORANDUM OPINION
The jury convicted Appellant, Fredrick Calicutt, of robbery and assessed his
punishment at confinement for a term of fifteen years in the Institutional Division of
the Texas Department of Criminal Justice.1 See TEX. PENAL CODE ANN.
§ 29.02(a)(2) (West 2019). The jury additionally imposed a fine of $5,000. The trial
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The trial court found Appellant to be indigent and appointed trial counsel, but Appellant waived
his right to counsel and proceeded to trial pro se.
court ordered Appellant to pay court costs and fees totaling $445. In a single issue,
Appellant asserts that the trial court erred in failing to determine on the record how
his fines were to be discharged. He seeks a remand of this case so that the trial court
can perform an inquiry on the record of his ability to pay the fine. We affirm.
Background Facts
Appellant does not challenge the sufficiency of the evidence to support his
conviction. Therefore, we only recite the facts that are necessary to address the issue
that he has raised on appeal.
After sentencing, the trial court ordered Appellant to pay court costs totaling
$290 and a reimbursement fee in the amount of $155. The trial court, having
previously found Appellant to be indigent, found that Appellant was still indigent
and informed Appellant that he would owe the $155 reimbursement fee but would
not owe “the court appointed attorney’s fees.” The trial court’s judgment states that,
“[u]pon release from confinement, the Court ORDERS Defendant to proceed
without unnecessary delay to the District Clerk’s Office, or any other office
designated by the Court or the Court’s designee, to pay or to make arrangements to
pay any fines, court costs, reimbursement fees, and restitution due.”
Analysis
In a single issue, Appellant asserts that the trial court erred in failing to
determine on the record how the assessed fines would be discharged after it found
Appellant to be indigent. Appellant does not contest the imposition of the fines and
costs themselves.
Article 42.15 of the Texas Code of Criminal Procedure provides that:
(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 as provided by Article 27.13, 27.14(a),
or 27.16(a), a court shall inquire on the record whether the defendant
has sufficient resources or income to immediately pay all or part of the
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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 under, as
applicable, Article 43.09(f), Article 45.049, Article 45.0492, as
added by Chapter 227 (H.B. 350), Acts of the 82nd Legislature,
Regular Session, 2011, or Article 45.0492, as added by Chapter 777
(H.B. 1964), Acts of the 82nd Legislature, Regular Session, 2011;
(3) waived in full or in part under Article 43.091 or 45.0491;
or
(4) satisfied through any combination of methods under
Subdivisions (1)-(3).
TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1) (West Supp. 2023).
Appellant contends that Article 42.15 requires that the trial court not only
make an inquiry into a defendant’s ability to pay on the record, but also make a
determination of how the fines and costs are to be paid or discharged on the record
(the determination). See CRIM. PROC. art. 42.15(a-1). Appellant asserts that the
plain language of Article 42.15(a-1) requires the trial court to make a determination
on the record as to whether the defendant shall pay all or part of the assessed fine
and costs by a method or combination of methods in subsections (1)–(3).
Conversely, the State asserts that the plain language of the statute does not require
that the determination be made on the record.
We note at the outset that we recently addressed a similar contention in
Polanco v. State, No. 11-23-00015-CR, 2024 WL 2194617, at *8–9 (Tex. App.—
Eastland May 16, 2024, no pet.). The appellant in Polanco also asserted that a
remand was necessary because the on-the-record requirement was absolute. Id. at
*8. However, the trial court in Polanco also recited in its judgment, as it did in this
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case, that “[u]pon release from confinement, the Court ORDERS Defendant to
proceed without unnecessary delay to the District Clerk’s office, or any other office
designated by the Court or the Court’s designee, to pay or to make arrangements to
pay any fines, court costs, reimbursement fees, and restitution due.” Id. We
concluded that this provision in the judgment rendered a remand unnecessary
because it was apparent that the trial court had found that the appellant did not have
sufficient resources or income to immediately pay the fines. Id. at *9. In Polanco
we cited several opinions from our sister courts that have reached the same result.
Id. at *9 n.5.
Today we reaffirm our holding in Polanco that an order in the trial court’s
judgment directing a defendant to pay the assessed fines and costs “upon release
from confinement” is sufficient evidence of the trial court’s inquiry finding and
payment determination—even without an explicit inquiry on the record. See id. at
*8–9. The same is true here. Appellant does not allege that the trial court’s failure
to strictly comply with the spirit of Article 42.15(a-1) prevented him from raising
and developing a claim on appeal. See Sloan v. State, 676 S.W.3d 240, 242 (Tex.
App.—Tyler 2023, no pet.). Furthermore, there is evidence in the record that the
determination Appellant now requests was in fact made because, consistent
with Article 42.15(a-1)(1), the trial court’s judgment includes an order that
Appellant shall pay the assessed fines after his release from imprisonment, rather
than immediately. See Jones v. State, No. 14-22-00495-CR, 2024 WL 848371, at
*6 (Tex. App.—Houston [14th Dist.] Feb. 29, 2024, no pet.). Consistent with our
prior decision, the trial court’s finding of Appellant’s indigency paired with the order
contained in the judgment is sufficient to satisfy the requirements of Article 42.15.
See Polanco, 2024 WL 2194617, at *8–9.
Because Appellant has not challenged the trial court’s determination of when
he is to pay the assessed fine, we conclude that remanding this cause to the trial court
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merely for the purpose of reiterating the trial court’s determination is unnecessary
when the result already appears on the face of the record before us. See id.; Sloan,
676 S.W.3d at 241–42. To do otherwise would constitute a waste of judicial
resources. We overrule Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
July 25, 2024
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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