Martin Cruz v. the State of Texas

Affirmed and Majority and Concurring Opinions filed May 4, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00454-CR
MARTIN CRUZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1544565
MAJORITY OPINION
A jury convicted appellant Martin Cruz of aggravated kidnapping in 2021,
and the jury assessed punishment at 30-years imprisonment as well as a fine of
$8,000. Tex. Penal Code Ann. §§ 20.04 (aggravated kidnapping); 12.32
(first-degree felony punishment). Appellant argues the trial court committed
reversible error by (1) admitting evidence that a co-defendant, who was tried
separately and did not testify at appellant’s trial, fired a gun at the complainant on
the day after the alleged offense and (2) by not conducting an
ability-to-pay-inquiry in violation of Code of Criminal Procedure article
42.15(a-1).
Appellant’s second issue requires resolution of the following two questions
(1) whether an ability-to-pay inquiry under Code of Criminal Procedure article
42.15(a-1) is subject to a Marin preservation analysis and (2) whether 42.15(a-1)
applies retroactively. Tex. Code Crim. Proc. Ann. art. 42.15(a-1); Marin v. State,
851 S.W.2d 275, 278–80 (Tex. Crim. App. 1993). Although we conclude that
appellant’s right to an ability-to-pay inquiry is a category-two Marin right and that
the current version of the statute should apply retroactively to appellant’s trial, we
are constrained by this court’s prior precedent. With little analysis, this court
recently held the 2021 amendments to article 42.15(a) do not retroactively apply to
convictions before the effective date of the amendments. See Hernandez-Faced v.
State, 661 S.W.3d 630, 638–39 (Tex. App.—Houston [14th Dist.] February 14,
2023, pet. filed). We therefore follow our precedent, although a thorough analysis
of the “plain language” of the amendments to article 42.15(a) does not support the
result reached in Hernandez-Faced.
Because appellant did not preserve a complaint for appellate review on his
sole evidentiary issue and does not otherwise challenge the legal sufficiency of the
evidence that supports the jury’s verdict of guilty, we dispense with a summary of
the facts and affirm the judgment of the trial court as challenged on appeal.1
1
See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is
as brief as practicable but that addresses every issue raised and necessary to final disposition of
the appeal.”).
2
I. ANALYSIS
A. Ability-to-pay inquiry
We begin with issue 2, in which appellant argues that the trial court erred by
not conducting an ability-to-pay inquiry on the record and asks this court to
remand the case to the trial court for an ability-to-pay inquiry on the $8,000 fine
assessed by the jury. The record does not reflect that the trial court held an
ability-to-pay inquiry on the record or that appellant lodged any objection to the
lack of such an inquiry.
1. Statutory changes
The Code of Criminal Procedure in effect at the time of trial provided that,
after a trial court imposes a sentence:
[A] court shall inquire 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). 2
After appellant’s trial concluded, the current version of the statute went into
effect requiring that ability-to-pay inquiries be conducted on the record.3 Act of
2
Act of May 28, 2017, 85th Leg., R.S., ch. 1127, § 4, art. 42.15(a-1), 2017 Tex. Gen.
Laws 4317, 4318 (codified as Tex. Code Crim. Proc. Ann. art. 42.15(a-1)).
3
Bill analysis prepared by the Senate Research Center, citing the original author’s
statement of intent, explains the amendment is intended to close a loophole created by boilerplate
language used in criminal judgments:
3
May 8, 2021, 87th Leg., R.S., ch. 106, § 1, art. 42.15(a-1) (Tex. Code Crim. Proc.
Ann. art. 42.15(a-1)) (emphasis added). The act states that “changes in law made
by this Act apply to a fine, fee, or cost imposed before, on, or after the effective
date.” See Act of May 8, 2021, 87th Leg., R.S., ch. 106, § 5. Although the effective
date of the current version of the statute was September 1, 2021, which was several
weeks after appellant’s trial concluded, appellant argues that the plain language of
the statute makes the current version of article 42.15 applicable to appellant’s trial.
See Act of May 8, 2021, 87th Leg., R.S., ch. 106, §§ 5, 6.
There are three threshold questions that must be answered to resolve issue 2:
(1) does the presumption of regularity require appellant to identify evidence
overcoming the presumption in favor of the boilerplate recitals in the judgment;
(2) was appellant required to object to the lack of an ability-to-pay inquiry to
preserve a complaint for appeal; and (3) does the current version of the statute
apply retroactively to a trial conducted before the effective date of the statute?
2. Presumption of regularity is no longer applicable
Although there is no ability-to-pay inquiry on the record, the judgment
recites that one was conducted: “After having conducted an inquiry into
Defendant’s ability to pay, the Court ORDERS Defendant to pay the fines, court
costs, reimbursement fees, and restitution as indicated above and further detailed
Although court orders have boilerplate language stating that they conducted such
an inquiry, some courts are not asking defendants about their inability to pay
despite the law’s requirements. When some public defenders have appealed the
issue, courts of appeal [sic] have ruled that due to the boilerplate language, they
will assume the inquiry happened, even when the inquiry is not in the record.
Under this framework, unless the record proves that the inability to pay inquiry
did not occur or an objection or statement that the inquiry has not been made,
courts of appeal [sic] would assume the inquiry did occur. This interpretation of
the law threatens to create a loophole defeating the legislative intent of S.B. 1913
[Act of May 28, 2017, supra note 2.].
See Senate Comm. on Crim. Justice, Bill Analysis, Tex. C.S.S.B. 1373, 87th Leg., R.S. (2021).
4
below.” Relying on similar (if not identical) recitals in criminal judgments, this
court and others have previously concluded that the burden was on appellant to
overcome the presumption of regularity created by recitals in a judgment. See
Wiggins v. State, 622 S.W.3d 556, 561 (Tex. App.—Houston [14th Dist.] 2021,
pet. ref’d) (citing Breazeale v. State to apply presumption of regularity to recitals
in judgment stating ability-to-pay-inquiry was held); Authorlee v. State, No.
14-20-00821-CR, 2022 WL 220267, at *4 (Tex. App.—Houston [14th Dist.] Jan.
25, 2022, pet. ref’d) 4 (mem. op., not designated for publication) (same); Lazarine
v. State, No. 01-19-00982-CR, 2021 WL 5702182, at *12 (Tex. App.—Houston
[1st Dist.] Dec. 2, 2021, pet. ref’d) (mem. op., not designated for publication)
(same); Weathersby v. State, No. 14-19-00339-CR, 2021 WL 629895, at *5 (Tex.
App.—Houston [14th Dist.] Feb. 18, 2021, pet. ref’d) (mem. op., not designated
for publication) (same); see generally Breazeale v. State, 683 S.W.2d 446, 450
(Tex. Crim. App. 1984) (en banc). (“presumption of regularity created by recitals
in the judgment can be overcome only when the record otherwise affirmatively
reflects that error occurred”).
Stated differently, to rebut the presumption of regularity, a defendant, before
the 2021 amendments, had to affirmatively prove that the ability-to-pay inquiry
was not held off the record. See State v. Guerrero, 400 S.W.3d 576, 583 (Tex.
Crim. App. 2013) (written recitals “are binding in the absence of direct proof of
their falsity”); Breazeale, 683 S.W.2d at 451. The opinions from this court and our
sister courts applying the presumption of regularity of judgments to boilerplate
recitals regarding ability-to-pay hearings were decided before the 2021
4
In Authorlee, this court cited to the 2021 version of the statute. Authorlee, 2022 WL
220267, at *4. However, the opinion relied on cases that addressed the prior version of the
statute without any discussion of the changes made to article 42.15(a-1) in 2021. Id. Therefore,
we clarify that the analysis of article 42.15(a-1) in Authorlee is no longer accurate based on the
current version of the statute.
5
amendments to article 42.15(a-1) were enacted and are no longer applicable. The
statute now requires that an ability-to-pay inquiry be held on the record. Tex. Code
Crim. Proc. Ann. art. 42.15(a-1). Therefore, if the record does not contain an
ability-to-pay inquiry, a recital in the judgment is not sufficient to comply with the
requirements of article 42.15(a-1).
3. Preservation requirement
In Marin v. State, the court of criminal appeals described three distinct
error-preservation rules: those involving “(1) absolute requirements and
prohibitions; (2) rights of litigants which must be implemented by the system
unless expressly waived; and (3) rights of litigants which are to be implemented
upon request. . . . since referred to . . . as category-one, -two, and -three Marin
rights[.]” Proenza v. State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017)
(discussing Marin, 851 S.W.2d at 279). “[T]he loss of a claim or right for failure to
insist upon it by objection” only applies to category-three rights, since these rights
are typically considered to be “optional with the litigants.” Proenza, 541 S.W.3d at
792 (quoting Marin, 851 S.W.2d at 279). Category-two rights, “because they are
‘so fundamental to the proper functioning of our adjudicatory process as to enjoy
special protection,’ are only abandoned on appeal when the record reflects that
they have been “plainly, freely, and intelligently” waived at trial.” Id. (quoting
Marin, 851 S.W.2d at 279–80). And category-one rights, being “systemic” and
therefore “essentially independent of the litigants’ wishes” can neither be forfeited
nor even validly waived by the parties for appellate-review purposes. Id. (quoting
Marin, 851 S.W.2d at 279).
To determine the category of the right at issue, Marin and its progeny look
to the various duties placed on trial courts and litigants by the rules and or statutes
at issue. See Proenza, 541 S.W.3d at 797; Marin, 851 S.W.2d at 280. Therefore,
6
we consider whose responsibility it was to enforce the right. We also look to the
language of the statute itself; although, language “couched in mandatory terms . . .
does not necessarily mean that the statute identifies an absolute prohibition or a
waiver-only right.” Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010);
see also Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (we
“attempt to discern the fair, objective meaning of that text at the time of its
enactment”).
In Proenza, the court of criminal appeals concluded that Code of Criminal
Procedure article 38.05, which prohibits the trial court from commenting on the
weight of the evidence in criminal proceedings or otherwise divulging to the jury
the court’s opinion of the case, was “fundamental to the proper functioning of our
adjudicatory system,” such that it should “enjoy special protection” on par with
other non-forfeitable rights. Proenza, 541 S.W.3d at 799. In reviewing article
38.05, the court concluded “by its very text creates ‘a duty on the trial court to act
sua sponte’—or rather, a duty to refrain sua sponte from a certain kind of action.”
Id. at 798 (quotation omitted). Therefore, the court of criminal appeals held that
article 38.05 cannot be waived or forfeited by a party’s inaction. Id. at 800–01.
Similarly, Code of Criminal Procedure article 42.15(a-1) creates a duty on
the trial court to act sua sponte and hold an ability-to-pay inquiry when a fine or
costs are imposed on a defendant in the judgment. Tex. Code Crim. Proc. Ann. art.
42.15(a-1) (“a court shall inquire on the record”). Subsection (a-1) was added to
article 42.15 in 2017 to eliminate the assessment of fines and costs that a defendant
lacked the financial means to pay. See Act of May 18, 2017, 85th Leg., R.S., ch.
1127, § 4, 2017 Tex. Gen. Laws 4317–18 (current Tex. Code Crim. Proc. Ann. art.
42.15(a-1)). The legislature intended to end the cycle of debt and potential for
future incarceration for failure to pay fines and costs faced by low-income and
7
indigent defendants that they never had the ability to repay. The court of criminal
appeals has also acknowledged the importance of ability-to-pay inquiries, in the
context of probation, as a statutory recognition that “the criminal-justice system
may not punish people for their poverty.” Mathis v. State, 424 S.W.3d 89, 94 (Tex.
Crim. App. 2014) (internal citations omitted).
Given these considerations, we conclude that a defendant’s right to an
ability-to-pay inquiry is “fundamental to the proper functioning of our adjudicatory
system.” See Proenza, 541 S.W.3d at 799. Having concluded appellant’s right to
an ability-to-pay inquiry is a category-two Marin right, we hold appellant was not
required to preserve this complaint for appeal through objection.5
4. Retroactive application
Because the statute requiring the ability-to-pay inquiry to be conducted on
the record went into effect after the date of appellant’s trial, we consider next
whether the statute was intended to apply retroactively.
The legislation amending article 42.15(a-1) clearly states that “changes in
law made by this Act apply to a fine, fee, or cost imposed before, on, or after the
effective Date.” See Act of May 8, 2021, 87th Leg., R.S., ch. 106, § 5, 2021. The
State argues that the retroactive wording does not apply to the “on the record”
requirement but instead only applies to fines, fees, or costs. This argument is not
supported by the legislation itself, which provides that “changes in law” — of
which the “on the record” requirement was one — apply to fines and costs
imposed before the effective date of the legislation. Given the legislature’s
frustration with the courts’ disregard of the mandate to hold ability-to-pay
5
The Marin analysis operates alongside Texas Rule of Appellate Procedure 33.1
(preservation of appellate complaints). In a perfect world, the appellate rules would incorporate
the Marin analysis.
8
inquiries, the retroactive application of the 2021 amendments to article 42.15(a-1)
is consistent with the Legislature’s intent in passing the 2021 amendments. See
State v. Kahookele, 640 S.W.3d 221, 225 (Tex. Crim. App. 2021) (“We assume
that every word has been used for a purpose, and we give effect to each word,
phrase, clause, and sentence if reasonably possible.”); Boykin, 818 S.W.2d at 785(“if the meaning of the statutory text, when read using the established canons of
construction relating to such text, should have been plain to the legislators who
voted on it, we ordinarily give effect to that plain meaning”).
We must next determine whether the retroactive application of article
42.15(a-1) is constitutionally prohibited. The Texas constitution prohibits any
“retroactive law.” Tex. Const. art. I § 16. “The retroactive laws provision of the
Texas Constitution operates only to prohibit the application of statutes which
disturb vested, substantive rights.” Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim.
App. 1999); see Grimes v. State, 807 S.W.2d 582, 587 (Tex. Crim. App. 1991)6
(article 44.29(b) did not violate prohibition against retroactive legislation); see also
Fowler v. State, 991 S.W.2d 258, 261 (Tex. Crim. App. 1999) (“The procedural
mechanisms for reviewing that conviction are not a vested and substantive right”
therefore application of Rule 44.2 did not violate prohibition of retroactive laws);
Ex parte Davis, 947 S.W.2d 216, 220 (Tex. Crim. App. 1996) (amendments to
Article 11.071, limiting subsequent applications for writ of habeas corpus, were
procedural and did not affect vested, substantive rights); Robisheaux v. State, 483
S.W.3d 205, 215 (Tex. App.—Austin 2016, pet. ref’d). 7 Laws altering procedure
6
The court of criminal appeals assumed “without deciding that Article I, Section 16’s
proscription against retroactive legislation is applicable to criminal cases.” Grimes, 807 S.W.2d
at 587.
7
In civil cases, the supreme court has held that “[m]ere retroactivity is not sufficient to
invalidate a statute.” Texas Water Rights Comm’n v. Wright, 464 S.W.2d 642, 648 (Tex. 1971).
“Constitutional provisions limiting retroactive legislation must therefore be applied to achieve
9
do not generally fall within the prohibition. Ibarra, 11 S.W.3d at 192. “Procedure”
refers to changes in the process by which a criminal case is adjudicated as opposed
to changes in the substantive law of crimes. See Ex parte Scales, 853 S.W.2d 586,
588 (Tex. Crim. App. 1993). Because article 42.15(a-1) does not disturb any
vested, substantive rights, it does not violate the constitutional prohibition.
5. This court’s precedent
Despite the foregoing conclusions, a panel of this court has recently
addressed this issue. In Hernandez-Faced v. State, this court held that “[based] on
the plain language of the amendment, the changes to article 42.15(a-1)
retroactively applied only to fines, fees, and costs, not the hearing requirement.”
Hernandez-Faced, 661 S.W.3d at 638. This court further concluded that a
retroactive application of article 42.15(a-1) would lead “to the absurd result that all
prior judgments of conviction imposing fines, costs, or fees on a defendant without
a hearing on the record would be subject to being declared invalid.” Id. at 638–39.
This conclusion ignores the plain language of the statute as discussed above. The
analysis by the court in Hernandez-Faced was cursory and did not consider the
intent of the legislature—to end current system’s cycle of debt, license
suspensions, arrest warrants, and jail time when defendants cannot pay the fines
and fees assessed. 8 The legislature was also concerned with the administrative
their intended objectives—protecting settled expectations and preventing abuse of legislative
power.” Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 139 (Tex. 2010). In
Robinson, the court established a three-part test for examining whether retroactive laws are
constitutional: “the nature and strength of the public interest served by the statute as evidenced
by the Legislature’s factual findings; the nature of the prior right impaired by the statute; and the
extent of the impairment.” Id. at 145. In Reynolds v. State, 423 S.W.3d 377, 380, 383 (Tex. Crim.
App. 2014), appellant argued the court of criminal appeals should adopt the Robinson test to
determine whether a statute is unconstitutionally retroactive, but the court did not reach the issue
because the retroactivity challenge was not preserved.
8
See Senate Comm. on Crim. Justice, Bill Analysis, Tex. C.S.S.B. 1913, 85th Leg., R.S.
(2017).
10
burden and cost to courts and county staff for the work of attempting to collect
uncollectible fees and costs.9
Although the analysis by the court in Hernandez-Faced of the “plain
language” of the 2021 amendments is erroneous, we are bound by this precedent.10
See Quick v. State, 557 S.W.3d 775, 792 (Tex. App.—Houston [14th Dist.] 2018,
pet. ref’d). The court of criminal appeals can and should resolve this issue.
However, because appellant was convicted and sentenced before the effective date
of the 2021 amendments, we conclude the 2021 amendments do not control the
outcome of this case.
We overrule issue 2.
B. Admission of evidence
In his other issue, appellant contends the trial court abused its discretion by
admitting testimony over appellant’s Rule 402, 403, and 404 objections and seeks
reversal as to guilt and remand for a new trial.11 See Tex. R. Evid. 402, 403, 404.
However, after the State raised in its response that this issue was not preserved for
9
See Senate Comm. on Crim. Justice, Bill Analysis, Tex. C.S.S.B. 1373, 87th Leg., R.S.
(2021).
10
This case raises the issue of horizontal stare decisis. See Andrew T. Solomon, A Simple
Prescription for Texas’s Ailing Court System: Stronger Stare Decisis, 37 St. Mary’s L.J. 417,
429–30 (2006) (in hybrid horizontal stare decisis model, “a court can overrule its own prior
decisions, but only when compelling circumstances justify a change in the law”). The court of
criminal appeals has recently explained that “there is a strong presumption in favor of established
law.” Ex parte Thomas, 623 S.W.3d 370, 381 (Tex. Crim. App. 2021); see also Phelps v. State,
532 S.W.3d 437, 443 n.6 (Tex. App.—Texarkana 2017, pet. ref’d) (“under horizontal stare
decisis courts have less discretion to revisit their own cases or cases issued by courts of equal
jurisdiction which involve statutory interpretations”).
11
Even if appellant’s objections were preserved, appellant would have to show harm. See
Tex. R. App. P. 44.2(b); Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008).
Appellant’s brief offers no meaningful harm analysis or addresses why the remaining evidence
was insufficient to support the conviction. See Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim.
App. 2008) (“We have construed this to mean that an error is reversible only when it has a
substantial and injurious effect or influence in determining the jury’s verdict.”).
11
appellate review, appellant conceded, in his reply brief, that he did not timely
object to the admission of the testimony. Therefore, issue 1 was not preserved for
review. See Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1.
We overrule issue 1.
II. CONCLUSION
We affirm the judgment of the trial court as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Spain, Poissant, and Wilson (Wilson, J., concurring).
Publish—Tex. R. App. P. 47.2(b).
12