Affirmed and Majority and Concurring Opinion s 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 202 1, and the jury assessed punishment at 30

- years i mprisonment as well as a fine of $8,000

. Tex. Penal Code Ann. §§ 20 .0 4 ( aggravated kidnapping ); 1 2. 32 (f

irs t- deg ree felony p unishment)

. Appellant argues the t ri al cour t committed reversi ble error by (1) admitting evidence that a c o- defendant , who was tried separately and did no t testify at appellant ’ s trial , fired a gun at the compl ainant on2 the day a ft er the all e ged o ffense an d (2) by not conducting an

a bility

- to

- pay- inq uiry in violation of Code of Criminal Procedure artic le 42.15(a -1).
A ppellant ’s se cond i ssue requires resolution of the following two questions (1) whether an a bility

- to

- pay inq uiry unde r Code of Criminal Proced ure artic le 42.15(a

- 1) is subject to a Ma rin preservation analysis and (2) whether 4 2.15(a

- 1) applies retroactively

. Tex. Code Crim. Proc. Ann. art. 42.1 5(a- 1); Marin v. State , 851 S.W.2d 275, 27 8– 80 (Tex. Crim. App. 1993)

. Although w e conclude t hat
ap pellant ’ s right to an ability

- to -p ay i nqu iry is a category

- two Marin right and that the current vers ion of the statute should apply retroactively to appellant ’ s t rial , we are constrained by this court ’ s prior precedent

. With little ana lys is, this court recently h eld the 2021 amendments to article 42.15(a) do not retroactive ly apply to convictions before the effective date of the amend ments. See H ernandez -F aced v. S tate , 661 S.W.3d 630, 638

– 39 (Tex. App.

— Houston [14th Dist.] February 14, 2023, pet. filed)

. We therefore follow our precedent, a lthough a thorough analysis of the “ plain language ” of the amendments to article 42.15(a) does not support the resul t reached in H ernandez -F aced

. Because a p pellant d i d not preserve a c o mplaint for ap pellat e review on his sole evid entiary iss ue and do es not otherwise chall enge th e legal sufficienc y of the evidence that support s 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 ap peal

. 1

1 See Tex. R. App. P. 47.1 (“ The court of appeal s must hand down a written opinion that is as brief as practicable but that addresses every is sue raised and necessary to final dispositi on of the appeal.”).3 I. A NA LY SIS
A. A bilit y - to
- pay inq uiry
We be gin with issue 2, in w hich appellant a rgues that the trial court err ed by
not conducting an abil ity

- to

- pay in q ui ry on the record and asks this court to remand the case to the tri al court for an ability

- t o - pay inquiry on t he $8,00 0 fin e assessed by the jury. The reco rd do es not reflect that the trial court h e ld an ability

- to

- pay inq uiry on the record or that appell an t lodged any objection to the lack of such an inquir y
. 1. Statutory c ha nges The Code of Crimin al Pro cedure in ef fect at the t ime of trial provided th at , aft er a trial co urt imposes a sentence : [A ] court shall inquire whether the defenda nt has sufficient r eso urces or income to immediately pay all or part of the fine and costs. If the court determin es that th e defendan t doe s not ha v e sufficient resources or income to immediately pay all or part of th e fine and costs, the court shall determ ine whether the fine and costs should be : (1) subject to Subsection (c), required to be paid at some later date o r in a specified por tion at designated intervals; (2) discharged by p erforming 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. 42.1 5 ( a - 1)

. 2
After a ppel lant ’ s trial con cluded, the current version of th e statute went into effect requiring that ability

- to

- pay inqu iries be conduc ted on the record

. 3 Act of

2 Act o f May 28 , 201 7 , 8 5 th Leg., R.S., c h. 112 7 , § 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 Bi ll analysis p r epare d by the Senate Research Center , citi ng the origina l auth o r ’ s s t atement o f inte nt, e xplains the ame ndment is intended to close a loophole cre ated by boilerplate language used in criminal judgment s :4 May 8, 2021 , 87 t h Leg. , R.S., c h. 106, § 1 , art. 42.15(a

- 1) ( Tex. Code Crim. Pr oc. An n. a rt. 42.15( a - 1) ) (emphasis added)

. The act states that “ ch an ges in law m ade by this A ct apply to a fine, fee, or co st impos ed before, on, or after th e effective d ate

. ” See Act of May 8, 2021 , 87 th Leg. , R.S., c h . 106, § 5

. Although the effective d ate of the current v e rsio n of the statute was September 1, 2021, whic h was several weeks after appellant ’ s tria l co ncluded, appellant argues th at the plain language of the statute makes the current version of a rticle 42.15 appl icab le to appellant ’ s trial

. See Act of May 8, 20 2 1 , 8 7 th Leg. , R.S., c h . 106, § § 5, 6

. There are three thre shol d questi ons that m ust be answered to res olve issue 2 : (1) d oes the presumption of regula rity require appellant to identify evidence overcoming the presump tion in favor of t he boilerplate recit a ls i n the judgment ; (2 ) w as appellant required t o object to th e lack of an ability

- to

- pay inqui ry to pr eserve a complaint for app eal ; and ( 3 ) d oes t he c urrent version of the sta tute appl y retroac tively t o a trial conducted before the e ffective dat e of the stat ut e ?
2. Presum ption of regula rit y is no longer appli cable Although there is no ability

- to

- pay inquiry on the record, the judgment recite s that one was conducted : “After having conducted an inquiry in to Defendant ’s ability to pay, the Court ORDERS Defend a nt t o pay th e f ines, court costs, reim bursement fees, and restitution as indicated above and further de tailed

A lthough c ourt orders ha ve b oilerplat e lang uage stating that they cond uc ted such an inquiry, some cour ts are not asking defendants abo ut their inability to pay despite the law ’ s requireme nts. When so me public defenders h ave appe aled the issue, courts of appeal [sic] have ruled that due to the boile rplate language, they will assume t he inquiry happened, eve n w hen the inquir y is not in the record. Under this fr amework, unless the record prov es that th e ina bil it y to pay inqu iry did not occur or an objection or statement that the in quiry ha s no t b een ma de, courts of appeal [sic] would assume t he inquiry did occ ur. This interpretation of the l aw threatens to create a loophole defeating the legis lative int ent of S.B. 19 13 [ Act o f May 28 , 201 7 , supra not e 2

. ]

. See Senate Comm. on Crim. Justice , Bill Analysis, Tex. C.S

. S.B. 13 7 3 , 8 7 th Leg ., R.S. ( 2021 ).5 below. ” Rely ing o n similar (if not identical) recital s in criminal j udgment s , this court and others have previously concluded that the burden was on appellant to

overcome the pres umpti on of regu larity created by recitals in a jud gment. See Wiggins v . State , 622 S.W.3d 556, 561 (Tex. App.

— Ho uston [14th Dist.] 2021, pet. ref’d) ( citing B reazeale v. State to apply presumption of re gularity to recitals in j udgm ent stating ability

- to

- pay - inquiry wa s h eld) ; Authorlee v. S tate , No. 14

- 20

- 00821

- CR, 2022 WL 2 20267, 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

- 0098 2

- CR , 2021 WL 5702182, at *12 (Tex. App.

— Hou ston [1 st Dist.] Dec . 2, 2021, pet. ref’d) (me m . op. , n ot designated for p ublication ) (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 publica tio n ) (same) ; see generally Breazeale v. State , 683 S.W.2d 446, 45 0 (Tex. Cri m. App. 1984) (en banc)

. ( “ presumption of regularity created by recitals in the judgment can be overcome only whe n the record otherwi se af firm ativ ely

r eflects that error occurred ” )

. Stated di ffer ently, to rebut the presum ption of regular ity, a defendant , b efore the 2021 amendmen ts , had to affirmatively prove that the ability

- to

- pay inqui ry was not held off the record

. See State v. Guerr ero , 400 S.W.3d 576, 583 (Tex. Crim. App. 2013 ) ( w ritten rec itals “are binding in the absence of direct proof of their fals ity”) ; Breazeale , 683 S .W.2d at 451

. The opinions from this court and our si ster courts applying the presumption of regularity of jud gment s to boilerplate recitals regarding abili ty

- t o - pay hear ings were decided before the 2021

4 In Authorlee , th i s court cite d to the 2 021 ve rsion of the st atut e
. Autho rlee , 2022 WL 220267, at *4

. How eve r, t he op inion relie d on case s that addressed the prior ve rsion of the statute wit hout any d iscussion of the change s made t o a rticle 42.15(a

- 1) i n 20 21

. Id

. Th erefore , we cl arify that the analys is of a rticle 42.15 (a

- 1) in Authorlee is no longer accurate ba sed on the current version of the statute.6 amendments to a rticle 42.15(a

- 1) were enacted and ar e no longer appl icable

. The
sta tute now requires that an ability

- to

- pay inquiry be held on the record. Tex. Co de Cr im. Proc. Ann. art. 42.15(a

- 1). Therefore , if the recor d does not contain an ability

- to

- pay inquiry , a recital in the judgment is not sufficient to comp ly with the requirements of article 42.15(a

- 1)

. 3. Pr eservation requirement
In M ar i n v. State , the cou rt of cr iminal appeals described three distinc t

error- preservation rules : thos e invol ving “ (1) absolute requirements and
pr ohibiti on s; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) ri gh t s of litigants whic h are to be implemented
upon request

. . . . since refe r red to

. . . as category

- one, - two , and

- three Mari n rights [ .] ” Proenza v. Stat e , 541 S. W. 3d 786, 792 (Tex. Crim. App. 2017) ( discussing Marin , 851 S.W. 2d at 279 ). “ [T] h e loss of a claim or right for failure to insi st upon it by objection” only applies to category

- three rights , since these rights are typically con side red to be “optional wit h the litigants.” Proenza , 541 S. W. 3d at 792 (quoting Marin , 851 S.W. 2d at 279 ). C ategory

- two r ights, “ because th ey a re

‘ so fu ndamental to the pro per f unc tioning of our adju dicatory pr ocess as to enjoy special protection, ’ are only abandoned on appea l when the record r e flects that they have been “p lainly, freely, and intelligently” waived at trial .” Id

. (quoting Marin , 851 S.W. 2d at 279

– 80 )

. And category

- one r i ghts, be ing “systemic” and
t heref ore “essentially indep endent of t he litigant s’ wishes” can neither be forfeited nor even validly waived by the parties for appellate

- review purpo ses. Id

. (quoting Marin , 851 S.W. 2d at 279 ). To determine the category of the right at issue , Marin a nd its prog e ny look
to t he various duties plac ed on trial courts and liti gants by the rules and or sta tutes at issue

. See Proenza , 541 S.W.3d at 797; Marin , 851 S.W .2d at 280. Therefore,7 we consider whose responsibility it was to enforce th e right

. We also look to the language of the sta tute itse lf ; a lth ou gh , language “cou ched in ma ndatory term s
. . . does not necessarily mean that the statute iden tifies an absolute proh ib ition or a waiver

- only right

. ” Trinidad v. State , 31 2 S.W.3d 23, 29 (Tex. Crim. App. 2010) ; see al so 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 P roen za , the court of criminal appeals concl u ded that Cod e of Criminal Procedure article 38.05 , whi ch pro hibits the trial court from c ommentin g on the weight of the eviden ce in criminal proceedings or otherwise di vulging to the jury the c ourt ’ s opinio n of th e cas e , w as “fundamental to the proper funct ioning of our adj udicatory system,” such that it should “en joy sp ecial protection” on par with
ot her non

- forfeitable righ ts. P roenz a , 541 S.W.3d at 799. In reviewing article 38.05, the co urt co ncluded “ by its ver y tex t cr eates ‘ a duty on the trial court to act sua sponte ’

— or rather, a duty to refrain sua spont e fr om a c ertain kind of action. ” Id . at 7 98 (qu otation omitted). Therefore, the court of criminal appeals held that

a rticle 38.0 5 c annot be waived or forfei ted b y a part y ’ s inaction. Id

. at 800

– 01

. Simi larly, C ode of C riminal Procedure a rticle 42.15(a

- 1) creat es a du ty on th e trial court to act sua sponte and hold an abilit y - to

- p ay inquir y when a fine or costs are imposed on a defendant in the judgme n t

. Tex. Code Crim. Pro c. Ann. art. 42.15(a

- 1) ( “ a court shall inq uire on the record ” ). Subsection (a

- 1) was added to

a rticle 42 .15 in 2017 to eliminate the ass essme nt of fines and cos ts that a defe ndant lac ked the financial me ans to pay
. See Act of May 18 , 2017, 85th Leg., R.S. , c h. 1127 , § 4, 2 017 Tex. Gen

. Laws 431 7

– 1 8 ( current Te x. Code Crim. Proc. Ann. art. 42.15(a

- 1) ) . The legislature intended to end the cyc le of debt and potential for fut ure incar cerat ion for failure to pay fines and costs faced by lo w - income and8 indige nt defendant s that they never had the abilit y to rep ay
. The court of cri minal
appea l s has al so acknowledged the impor tance of abi lit y - to

- pa y in quiries , in the context of p robatio n , as a statutory re cognition that “ th e criminal

- just ice sy stem may not punish people for their poverty

. ” Math is v. State , 424 S.W.3d 89, 94 (Tex. Crim. App. 201 4) (inter nal citations omitted).
Given th ese cons ideratio n s , we conclude that a defendant ’s ri ght to an ability

- to

- pay inq uiry is “fundame nta l to t he pro per functioning of our adjudicatory

s ystem

. ” See P roenza , 541 S .W.3d at 799. Having concl uded appellan t ’ s r ight to

an ability

- to

- pay inq uiry is a catego ry - two M arin right, we hold appellant was not required to p reserve this complaint for ap peal throu gh obj ection. 5
4. Retr oactiv e application
Because the statute requi ring the ability

- to

- pay inquiry to be conduc ted on the record went into effect after the date of appel lant ’ s tri al, we consider next whether th e stat ut e was intended to apply ret ro act ively

. Th e legi slation amending a r ticle 42.15(a

- 1) clea rly s tate s that “ ch ange s in law m ade by this A ct apply to a fi ne, f ee, or cost impos ed before, o n, or after th e effectiv e Date. ” See Act of May 8, 2021 , 87 th Leg. , R.S., c h . 106, § 5, 2021

. The State argues tha t the retroactive wording does not apply to the “ on the rec ord ” requi rement but i nstead only appl ies to fines , fees , or costs. This argument i s not supported by t he l egislation it self, wh ich provides that “ change s in law ”

— of which the “ on the record ” req uireme nt was one

— appl y to fines and costs imposed before the effect ive date of the legisla tion . Given the legislature ’ s frustration wi th the c o urts ’ disrega rd of the m andate to hol d ability

- to

- pay

5 The Marin analysis operates alongside T exas Rul e of Appellate Procedur e 33.1 ( preserva t ion of appellate complaints)

. In a perfect wor ld , the app ellate rules would incor porate th e Marin analysis.9 inquiries, the retroactive application of the 2021 amendm ents t o article 42.15(a

- 1 ) is consistent with the Legislature ’ s inten t in passing th e 2021 amend me nts. See State v. Kahookele , 640 S.W.3d 221, 2 25 (Tex. Crim. App. 2021 ) ( “ We assume that every word has been used for a purpose, and we give effect to each wo rd, ph rase, cl ause, and s entence if reasonably possible. ” ); Boykin , 818 S.W.2d at 785 ( “ i f the meaning of the statutory text , when rea d using the established canons of construction relating to such text, should have been p lain t o the legislators w ho voted on it, we ordinarily give effect to that plain m eaning ” )

. We must ne xt determine w h ether the retroactive application of a rti c le 42.15( a - 1) i s constitutionally proh ibit ed. T he Texas constitution pro hibits any

“ retroactive l aw. ” T ex. Const. art. I § 16. “ T he retro active laws provision of the Texas Constitution operates only to prohibit the application of statutes which disturb ve sted, subs tantiv e rights. ” Ibarra v. State , 11 S.W.3d 189, 192 (Tex. Crim. App. 1999) ; see Grimes v. Sta te , 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 2 58, 26 1 (Tex. Crim. App. 1999) ( “ The pr ocedural mechanisms for reviewing that convic tion a re not a vested and substantive ri ght ” therefore application of Rule 44 .2 did not violate prohibition of ret roactive laws ) ; Ex parte Davis , 947 S.W.2d 2 16, 220 (T ex. Cri m. App. 199 6) (amendments to Article 11.071, limiting subsequent applications for writ of habeas corpus, w ere procedural and did not affect vested, su bstantive rights ) ; Robisheaux v. State , 483 S.W.3d 205, 215 (Tex. App.

— Austin 2016, pet. ref’d)

. 7 Laws alter ing procedure

6 The court of cr iminal appeals assumed “witho ut deciding that Article I, Section 16 ’ s proscriptio n against retroactive legislation is appl icable to criminal cases.” Grimes , 807 S.W. 2d at 587.
7 In civil cases, the supreme court has held that “ [m]ere retroactivity is n ot sufficient to invalidate a st atute

. ” Texas Water Rights Comm’n v. Wright , 464 S.W. 2d 642, 64 8 (Tex. 1971)

. “ C onstit utional provisions limiting retroactive legislation must theref ore be applied t o achieve10 do not generally fall within the prohibition. Ibarra , 11 S.W.3d a t 192

. “Procedure” refers to changes in the process by which a crimin al case is adjudicated as opposed to changes in the substantive law of crimes. See Ex parte S cales , 853 S. W.2d 5 86, 588 (Tex. Crim. App. 1993)

. Because a rticle 42.15( a - 1) does not disturb any veste d , substantive righ ts , it does not violate the constitutional p rohibition.
5. This court ’ s precedent Despite t he for egoing conclusions , a p anel o f this cou rt has recently addressed this issue. In Hernandez

- Faced v. State , this court held that “ [based] o n the plain language of t he amendmen t, the changes to article 42.15(a

- 1) retroactively applied only to fines, fees, and costs, not the hearing requirement. ” H ernandez

- Faced , 661 S.W.3d at 638 . This cou rt fur ther concluded that a retroactive application of articl e 42.15(a

- 1) would lead “ to th e absurd result that all prior ju dg ments of conv iction imposing fines, costs, or fees on a defendant without a hearing on the record would be subject to being declared inv alid. ” Id . at 638

– 39

. This concl usion ignores the pla i n language of the st a tute as di scussed above. The analysis by the court in Hernandez

- Faced was curs ory and did not consider the intent of the legislature

— to end current system’s cycle of debt, license suspensions, arrest warran ts , and jail time whe n d efen dants cannot pay the fines and f ees assessed

. 8 The legis l ature was also concerned with the administrative

their int ended ob jectives

— protecting settled expe cta tions and preventing abuse of legislative power.” Robinson v. Crown Cork & Seal Co ., Inc ., 3 35 S.W.3d 126, 139 (Tex . 2010). In Robinson , the court established a three

- part test f or examining whe ther retroactive la w s are c onstituti onal: “the nature and s tre ngth of the public interest s erved by the statute as evidenc ed by the Legislature ’ s factual findings; the nature of the pri or right impaired by the statute; and the
e xtent of the impairment.” Id

. at 145

. In Reynol ds v. St ate , 423 S.W.3d 377, 38 0, 383 (Tex. C rim

. App. 2014) , appellant argue d the c ourt of criminal appeals should adopt the Robi nson test t o determine whether a statute is unconstitutionally retroactive , but the court did no t reach the issu e because the retroacti vity challenge was not preserved.
8 See Senate Comm. on Crim. Justice , Bill Analysis, Tex. C.S

. S.B

. 1 913 , 85th Leg ., R.S. ( 2017 )

.11 burden and cost to court s and county staff for the work of attempting to collect uncollectible fees and co sts

. 9 Although the analysis by the cour t in Hernandez

- Faced of the “ pla in l anguage ” of the 2021 amendment s is erroneous, we ar e bound by this precedent. 10 See Quick v. State , 557 S.W.3d 775 , 79 2 (Tex. App.

— Houston [14th Dist.] 2018, pet . ref ’d)

. The court of c r iminal appeals can and should resol ve this issue. H owever, b ecause appe llant w as convicted and sentenced before the effec tive date of the 202 1 amendment s , we conclude the 2021 amendments do not control the outcome of this case.
W e overrule issue 2.
B. Admissio n of evidence
In his other issue , appellant conten ds the trial court abused i ts discretion by admitting tes timony over a ppellant ’s Rule 4 02 , 403 , and 404 objections and seek s reversal as to guilt a nd remand for a new trial

. 11 See Tex. R. Evid. 402, 403 , 404. However, after the State raise d in it s respons e that this issue wa s not p reserved for

9 See Senate Comm. on Crim. Justice , Bill Analysis, Tex. C.S.S.B. 1373 , 8 7th Leg ., R.S. (2021).

10 Thi s case raises th e issue of ho rizontal stare decisis. See Andrew T. Solomon, A Simple Prescription for Texas ’s Ailin g Court System: Stronger Stare Decisis , 37 St. Mary ’ s L.J. 417, 429– 30 (2006) (in hybrid horizontal st are decisis m od el , “ a court can overr ule its own prior decisions, but only when compelling circumstances justify a change in the law ” ). The court of crimi nal appeals has recently explained that “ there i s a strong presumption in favor of established law. ” Ex pa rte Thoma s , 623 S.W.3d 370, 381 ( Tex. Crim. App. 20 21) ; see also P helps v. State , 532 S.W.3d 437, 443 n.6 (Tex. A pp.

— Texarka na 2017, pet. ref’d) (“under horizontal stare decisis courts have less discretion to revisit their own cases or cases issued by courts o f e qual jurisdiction which involve statutory in terpretations ”).
11 Even if appellant ’ s objections were preserved , appell ant would have to show ha rm. See Tex. R. App. P. 44.2(b); Taylor v . State , 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). Appellant ’s br i ef offers no meanin g ful harm analysis or addresses why the remaining ev idence was insufficient to support the convic tion

. 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 whe n it has a
substantial an d injurious effe ct or infl uence in determining the jury’ s verdict. ” ).12 appellate review , a ppellant co nceded , in his reply brief, that he d id not tim ely

o bje ct to t he admis si on of the t e stimony . T herefore, issue 1 was not preserved for review

. See Tex. R. Evid

. 103( a)(1); Tex. R. App. P. 3 3.1

. We overrule i ssue 1.
II. C ONCLUSION
We affirm the judgment of the trial court as challen ged on appeal.

/ s/ Charle s A

. Spain Ju st ice
P an e l con sists of Justi ce s Spain , Poiss ant, and Wilson (Wil son, J., concurring ).
Publish —Te x. R. A pp. P. 47.2(b).