MARTIN CRUZ v. THE STATE OF TEXAS (2024)

We granted discretionary review ostensibly and primarily to resolve a “conflict” between two different panel decisions of the Fourteenth Court of Appeals.¹ I use the term “conflict” loosely as the court of appeals panel in this case essentially followed the holding of a court of appeals panel in an earlier case despite explaining a disagreement with the reasoning of the earlier case.² Rather than resolve this disagreement, we hold that Appellant failed to preserve error. I would address the issue the court of appeals asked us to address.³ Consequently, I concur in the Court's judgement and do not join the opinion.

At issue in this case is whether the 2021 Amendments to Article 42.15 (a-1) of the Code of Criminal Procedure requiring trial courts to conduct the inquiry into a defendant's ability to pay fines and costs on the record applies retroactively to Appellant's case. At the time of Appellant's sentencing, the text of the statute did not require trial courts to conduct the inquiry on the record and the record reflects a boilerplate assertion from the trial court that an inquiry was conducted, so understandably Appellant did not object to the lack of an inquiry on the record.⁴ However, a few weeks after Appellant was sentenced the amended statute went into effect and it included language suggesting that the changes might apply retroactively, rendering live the retroactive application issue—the very issue raised for the first time on appeal.⁵ So understandably, Appellant raised the question of whether this statute applies retroactively at his first opportunity, on appeal.⁶ We have previously held that error can be raised on appeal when the appellant never had an opportunity to raise the issue to the trial court.⁷ I believe we should apply that precedent to this case. The law changed to require an inquiry on the record while the case was on appeal, so Appellant lodged his complaint at the first opportunity he had to take advantage of the new law. While preservation of error is ordinarily a systemic requirement, we cannot not fault defense counsel for a failure to predict the future ⁸ , and we should not fault Appellant for failing to object when the law offered him no basis to do so. A bar card does not come with a crystal ball attached.⁹

On the issue of retroactivity, the Fourteenth Court of Appeals held in Hernandez-Faced, that the new inquiry-on-the-record requirement was not retroactive.¹⁰ The court of appeals reasoned that holding that this requirement is retroactive would lead to absurd results.¹¹ I agree with this reasoning. In the instant case, a different panel of the Fourteenth Court of Appeals took issue with the reasoning and conclusion of the court of appeals panel in Hernandez-Faced, but nevertheless followed that precedent.¹² I believe we should adopt the reasoning articulated in Hernandez-Faced and provide the guidance to the court of appeals that they are asking for. Because the Court does not, I do not join the Court's opinion and concur only in the result.

FOOTNOTES

1.   Cruz v. State, No. 14-21-00454-CR, 2023 WL 3236888, at *1 (Tex. App. — Houston [14th Dist.] May 4, 2023, pet. granted); cf. Hernandez-Faced v. State, 661 S.W.3d 630, 638-39 (Tex. App. – Houston [14th Dist.] 2023, pet. ref'd).

2.   Cruz, 2023 WL 3236888, at *1 (“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.”).

3.   Id. at *5 (“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. The court of criminal appeals can and should resolve this issue.”) (internal citations omitted).

4.   See Tex. Code Crim. Proc. Ann. 42.14 (2021), amended by Act of May 24, 2021, 87th Leg., R.S., ch. 106, 2021 Tex. Gen. Laws 202 (effective Sept. 1, 2021). Appellant was sentenced on August 11, 2021.

5.   Id. (stating that “changes in law made by this Act apply to a fine, fee, or cost imposed before, on, or after the effective date”).

6.   Specifically, Appellant complained on appeal that the trial court did not conduct an ability to pay hearing on the record and asked the court of appeals to remand the case to the trial court for it to conduct the required on-the-record inquiry into Appellant's ability to pay the fine and court costs.

7.   See Johnson v. State, 423 S.W.3d 385, 388-90 (Tex. Crim. App. 2014) (holding that a challenge to the basis of court costs imposed could be raised for the first time on appeal and reasoning, in part, that the defendant had no opportunity to object at trial).

8.   See, e.g., Ex parte Lane, 670 S.W.3d 662, 680 (Tex. Crim. App. 2023) (Richardson, J., concurring) (“I agree, in Applicant's sole claim of ineffective assistance of counsel, that Applicant's trial counsel was not ineffective for failure to predict the future.”).

9.   Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim. App. 2005) (“[A] bar card does not come with a crystal ball attached.”).

10.   Hernandez-Faced, 661 S.W.3d at 638-39 (concluding that the plain language of the Amendments to Article 42.15 (a-1) apply retroactively only to fines, fees, and costs, but not the on-the-record hearing requirement).

11.   Id. at 638.

12.   Cruz, 2023 WL 3236888, at *5.

Newell, J., filed a concurring opinion in which Richardson and Walker, JJ., joined.