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] 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 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, 87thLeg., 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, 87thLeg., 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 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 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, 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 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 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 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 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 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).
