Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00669-CR

Arnoldo A. ALMEIDA,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2021CR7294

Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Liza A. Rodriguez, Justice

Lori I. Valenzuela, Justice

Lori Massey Brissette, Justice

Delivered and Filed: September 11, 2024

AFFIRMED

Appellant asserts that the trial court committed harmful error by not conducting an abilityto-pay inquiry as required by Texas Code of Criminal Procedure article 42.15(a-1). We agree that 

the trial court erred, but its error has not affected Appellant’s substantial rights; it was harmless. 

Accordingly, we affirm the trial court’s judgment. 
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BACKGROUND

A. Plea Agreement; Revocation

On October 22, 2021, Arnoldo A. Almeida pled nolo contendere to a third-degree felony. 

The trial court sentenced Almeida to six-years’ confinement, imposed a fine of $1,000 and court 

costs of $310, suspended his sentence, and ordered community supervision. On October 7, 2022, 

Almeida pled true to violating a condition of his community supervision, which the trial court then 

revoked. The court ordered him “punished in accordance with the judgment and sentence 

originally entered in this cause,” and it imposed court costs of $1,520, with the fine and costs to 

be paid upon his release from confinement.

B. Anders Brief; Review, Remand

Court-appointed counsel filed an Anders brief, asserting that he reviewed the entire record 

and found no arguable points of error, and a motion to withdraw. See Anders v. California, 386 

U.S. 738, 744 (1967); Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). As 

required, we conducted an independent review of the record and concluded there was an arguable 

ground of appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also

Anders, 386 U.S. at 744. Specifically, this court had not yet decided whether the trial court’s 

failure to inquire on the record about a defendant’s ability to pay a fine and costs was reversible 

error. We granted the original appellate counsel’s motion to withdraw, abated this appeal, 

remanded the cause for the trial court to appoint new appellate counsel, and ordered new briefing.

C. Amended Briefs

In his amended brief, Almeida now argues that the trial court’s failure to inquire on the 

record about his ability to pay a fine and costs was harmful error and invalidated his conviction. 

The State asserts the conviction should be affirmed because (1) Almeida failed to preserve 

his complaint for appellate review, precluding us from reaching the issue; (2) the trial court must 
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have found that Almeida did not have the then-present ability to pay since it ordered the fine and 

costs to be paid upon his release from confinement; (3) any error in failing to hold an inquiry on 

the record is harmless since Almeida has a statutory right to seek reconsideration of the fine and 

costs upon his release; and (4) even if the trial court’s failure to inquire on the record is harmful 

error, the appropriate remedy is to affirm the judgment, modified to delete the fine and costs.

FAILURE TO INQUIRE ON THE RECORD

Article 42.15(a-1) requires the trial court, at the time of sentencing, to hold a hearing on 

the record regarding the defendant’s ability to pay any fine and costs:

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 fine and costs.

TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1) (emphasis added) (effective Sept. 1, 2021).

A. No Record of an Inquiry or Waiver

The trial court did not create a record of such an inquiry and the judgment does not include 

a recital of such an inquiry. While article 42.15(a-2) states “[a] defendant may waive the 

requirement for the inquiry described by Subsection (a-1) to be on the record,” id., nothing in the 

record shows that Almeida expressly waived the requirement. Accordingly, absent Almeida’s 

express waiver, we conclude the trial court erred when it failed to comply with the statutory 

requirement. See id.; Cruz v. State, No. 14-21-00454-CR, 2023 WL 3236888, at *4 (Tex. App.—

Houston [14th Dist.] May 4, 2023, pet. granted).

B. No Timely Objection to Fine and Costs

The State asserts Almeida waived error by not timely objecting to the absence of an inquiry 

on the record. See TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1) (requiring an inquiry on the 

record); TEX. R. APP. P. 33.1(a) (error preservation). Compare Sanders v. State, No. 05-22-01376-
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CR, 2024 WL 725529, at *8 (Tex. App.—Dallas Feb. 22, 2024, no pet.) (mem. op., not designated 

for publication) (“Nothing in the record indicates appellant objected to or otherwise complained 

to the trial court about its failure to conduct an inquiry.”), and Rodgers v. State, No. 06-23-00101-

CR, 2023 WL 6379018, at *2 (Tex. App.—Texarkana Oct. 2, 2023, no pet.) (mem. op., not 

designated for publication) (concluding that Rodgers’s failure to timely object waived his appellate 

issue), with Cruz, 2023 WL 3236888, at *4 (concluding that Cruz “was not required to preserve 

this complaint for appeal through objection”). 

As noted, some of our sister courts disagree on whether a timely objection is required. We

need not reach that question because the trial court’s error was harmless. See TEX. R. APP. P. 47.1.

REVERSIBLE ERROR ANALYSIS

We agree with Almeida that the trial court erred by failing to inquire on the record at the 

time of sentencing as to Almeida’s ability to pay the fine and costs. See TEX. CODE CRIM. PROC.

ANN. art. 42.15(a-1). But an “error, defect, irregularity, or variance that does not affect substantial 

rights must be disregarded.” TEX. R. APP. P. 44.2(b); see Johnson v. State, 43 S.W.3d 1, 5 (Tex. 

Crim. App. 2001) (requiring “the reviewing court to assess harm from the context of the error”).

A. No Order to Pay Before Release

The trial court’s judgment did not order Almeida to immediately pay the fine or costs. Cf.

Sanders, 2024 WL 725529, at *8 (noting that the appellant “might have suffered harm by the 

omission of [an article 42.15(a-1)] inquiry if the trial court ordered him to immediately pay the 

fine”); Gilmer v. State, No. 12-23-00054-CV, 2023 WL 8103957, at *4 (Tex. App.—Tyler Nov. 

21, 2023, no pet.) (mem. op., not designated for publication) (same). Further, because the record 

does not show that Almeida has been released, we conclude that Almeida’s substantial rights 

regarding paying a fine and costs have not yet been affected. Cf. Sanders, 2024 WL 725529, at 

*8; Gilmer, 2023 WL 8103957, at *4.
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B. Order to Pay Upon Release

Instead, the trial court ordered that, “upon release from confinement, [Almeida] pay, or 

make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by 

the Court.” Upon his release from confinement, if Almeida has difficulty paying the fine and costs 

in compliance with the judgment, he may request reconsideration of the fine and costs, and the 

trial court “shall hold a hearing to determine whether that portion of the judgment imposes an 

undue hardship on [him].” See TEX. CODE CRIM. PROC. ANN. art. 43.035(a); Polanco, 690 S.W.3d 

at 435 n.6. Thus, there is another opportunity for the trial court to inquire on the record about 

Almeida’s ability to pay the fine and costs at issue here. See TEX. CODE CRIM. PROC. ANN. art. 

43.035(a); Sloan v. State, 676 S.W.3d 240, 242 n.2 (Tex. App.—Tyler 2023, no pet.).

We conclude the trial court’s error has not affected Almeida’s substantial rights and is, 

therefore, harmless. See TEX. R. APP. P. 44.2(b); Johnson, 43 S.W.3d at 5.

CONCLUSION

The trial court erred by not inquiring on the record about Almeida’s ability to pay the fine 

and costs. But because the judgment did not order Almeida to pay until he was released from 

confinement, and Almeida may then request reconsideration of the fine and costs, the trial court’s 

error was harmless. We overrule Almeida’s sole issue, and we affirm the trial court’s judgment.

Lori Massey Brissette, Justice

Do not publish