Appellant claims that after his jury assessed him a fine, the trial court failed to conduct an ability-to-pay inquiry. See Tex. Code Crim. P. art. 42.15(a-1) (“Article 42.15(a-1)”). He did not object to the lack of an inquiry, and he argues that he did not have to object to preserve his complaint. But because the inquiry is not fundamental to the functioning of our adjudicatory system, Appellant forfeited his complaint when he failed to object in the trial court. Background In August 2021, Appellant was convicted by a jury of aggravated kidnapping and sentenced to 30 years in prison and a fine of $8,000 plus $325 in court costs and fees. The judgment noted that the court “conducted an inquiry into Defendant’s ability to pay” as required, but the inquiry does not appear in the record nor does any request for it or objection to the trial court’s failure to make it. When Appellant was sentenced, Article 42.15(a-1) read in pertinent part as follows: 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 whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs. Article 42.15(a-1). Weeks later, an amendment took effect requiring, among other things, trial courts to inquire “on the record” about the defendant’s ability to pay. Act effective Sept. 1, 2021, 87th Leg., R.S., ch. 106, 2021 Tex. Gen. Laws 202 (the “2021 Act”). Section 5 said, “The changes in law made by this Act apply to a fine, fee, or cost imposed before, on, or after the effective date of this Act.” Id. In the court of appeals, Appellant complained that the trial court “did not conduct an ability to pay hearing on the record.” Brief for Appellant at 30, Cruz v. State, 2023 Tex. App. LEXIS 2987 (Tex. App.—Houston [14th Dist.] May 4, 2023). Because the record did not otherwise support it, he discounted the judgment’s recital that an inquiry had been made.. Id. at 32. He argued that the presumption of regularity that favors judgment recitals would render the 2021 Act useless and contradict its plain language requiring an on-the-record inquiry. Id. at 33-34. He claimed that “the statutory directive that trial courts inquire into and consider a defendant’s ability to pay on the record is an ‘absolute requirement’ under Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).” Id. at 35. He claimed that the 2021 Act’s record requirement was retroactive. Id. at 32. And he prayed for the court of appeals to “remand the case for the ability to pay inquiry, to be held on the record.” Id. at 37. He explicitly argued that the inquiry itself was absolutely required. “[I]t is an absolute requirement for trial judges to conduct ability-to-pay determinations.” Id. at 36. And he urged the court of appeals “to remand the case to the trial court so the judge may perform the statutorily required ability-to-pay inquiry.” Id. The court of appeals agreed with Appellant. It said that because Article 42.15(a- 1) places a duty on the trial court to act sua sponte, the inquiry is a non-forfeitable right under Marin. Cruz, 2023 Tex. App. LEXIS 2987 at *8-9 (citing Marin, 851 S.W.2d at 280). It dispensed with the presumption of regularity because the 2021 Act required that the inquiry be on the record, and it thought the amendment was retroactive. Id. at *3 (citing the 2021 Act). Still, it upheld the trial court’s judgment because another panel had already held that the amendment was not retroactive. Id. at *5, citing Hernandez-Faced v. State, 661 S.W.3d 630, 638-39 (Tex. App.—Houston [14th Dist.] February 14, 2023, pet. ref’d). We granted review of Appellant’s three issues: (1) Whether the 2021 Act’s record requirement applied retroactively to Appellant’s trial; (2) if so, whether its retroactive application would be constitutional; and (3) whether his right to an inquiry about his ability to pay belongs to category one or two under Marin. His third ground for review reads: Mr. Cruz did not object to the absence of an on-the-record ability-to-pay inquiry. Nor did he affirmatively waive his right to such an inquiry. Whether he can complain on appeal about the absence of the inquiry depends on the categorization of his right under Marin. If his right is either a waivable right or an absolute requirement, he may complain on appeal. Is his right either a waivable right or an absolute requirement under Marin? Appellant’s Petition for Discretionary Review at 12. He says, and we agree, that his third ground is “a threshold issue,” and because the right to the inquiry is forfeitable, we do not reach either of the first two grounds for review. Marin Categories Marin sorted our error-preservation rules into three categories: (1) absolute requirements and prohibitions, (2) rights that must be implemented unless expressly waived, and (3) rights that are implemented upon request or else forfeited. Marin, 851 S.W.2d at 279. Most rights fall into the third category—they are forfeitable. Id.; see also Gonzalez v. State, 8 S.W.3d 640, 648 (Tex. Crim. App. 2000) (noting the “general rule” that most trial rights are forfeitable). Even constitutional rights may be forfeitable. Garza v. State, 435 S.W.3d 258, 260 (Tex. Crim. App. 2014); see also, Saldano v. State, 70 S.W.3d 873, 889 n. 74 (Tex. Crim. App. 2002) (citing several cases where evidentiary objections based on different constitutional rights were found forfeit). Category three includes the rights to: challenge the constitutionality of a statute; Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); avoid prosecution outside the statute of limitations; Ex Parte Heilman, 456 S.W.3d 159, 166 (Tex. Crim. App. 2015); confront witnesses; Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005); avoid multiple punishments; Gonzalez v. State, 8 S.W.3d 640, 645 (Tex. Crim. App. 2000); “present a complete defense[;]” Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009); instruct a jury on a defensive issue; Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998); keep a jury free from outside influence; Trinidad v. State, 312 S.W.3d 23, 29 (Tex. Crim. App. 2010). These rights may be constitutionally guaranteed, necessary to ensure a fair and accurate trial, and/or lead to dismissal of charges, but they are still forfeitable, category-three rights under Marin. “[E]ven errors that may be cured only by mistrial and rights whose timely assertion lead only to dismissal may still be forfeited by failure to raise or urge them at trial.” Proenza v. State, 541 S.W.3d 786, 796 (Tex. Crim. App. 2017). The category of the error turns on its nature, not its harmfulness. Id. Only rights that are “fundamental to the proper functioning of our adjudicatory system” are non-forfeitable. Marin, 851 S.W.2d at 278. Few are. They include rights to counsel and jury trial, Marin, 851 S.W.2d 275, 279; a sentencing judge’s consideration of the correct range of punishment, Grado v. State, 445 S.W.3d 736, 740 (Tex. Crim. App. 2014); a jury trial free of judicial comments on the weight of the evidence, Proenza, 541 S.W.3d at 801 (noting that it is at least a category two right); and appointment of an interpreter, Garcia v. State, 429 S.W.3d 604, 607 (Tex. Crim. App. 2014). Ability-to-Pay Inquiry Is Not Fundamental An ability-to-pay inquiry is not fundamental to the adjudicatory system; it is a post-trial procedure that has nothing to do with adjudication; it does not ensure a jury, a fair trial, a correctly informed sentencing judge, or a defendant’s ability to understand the proceedings against him. It does not implicate “the integrity of judicial sentencing proceedings” or “the criminal adjudicatory process[.]” See Grado, 445 S.W.3d at 741 (referencing judicial sentencing); see Proenza, 541 S.W.3d at 798 (referencing the criminal adjudicatory process). Requesting it would not likely be futile, and its post-trial timing forecloses the possibility that asking for it would expose the jury to the judge’s bias. See Proenza, 541 S.W.3d at 799. Requiring an objection to enforce it would not undermine “the public’s perception of the fairness of our judicial system” or engender “suspicions” about the system’s “fairness and accuracy.” See Grado, 445 S.W.3d at 741. In short, an ability-to-pay inquiry made during or right after sentencing bears no consequence to the adjudicatory process. Furthermore, missing out on it would not doom a defendant to undue hardship. The same relief from fine and costs offered by Article 42.15(a-1)(1)-(4)—delayed or periodic payments, community service, and/or fine-and-costs waiver—is available forever after sentencing. Tex. Code Crim. Proc. Art. 43.035(a). The defendant need only tell the court of his hardship; and he may do so in person or by motion, letter, or “any other method established by the court for that purpose.” Id. at art. 43.035(b). The court must grant the hardship hearing unless it (1) already held one and knows that the judgment does not impose a hardship or (2) can determine without a hearing that relief should be granted. Id. at art. 43.035(d). Wholesale waiver of the fine and costs is another option. See id. at art. 43.091. Yet another is crediting an indigent defendant’s jail time against his fine at a rate of $100/day. Tex. Code Crim. Proc. Art. 43.09(a). Given enough jail credit, an ability-to-pay inquiry would be pointless; and here it likely would have been since Appellant’s judgment credited him 1,609 days “TOWARD FINE AND COSTS[.]“ No one should be punished for being poor. See Mathis v. State, 424 S.W.3d 89, 94 (Tex. Crim. App. 2014). And correctly categorizing the ability-to-pay inquiry as a forfeitable right will cause no such punishment. We conclude that it is a category-three right. Counterarguments and Mistakes Appellant’s Arguments Appellant makes two arguments against categorizing the ability-to-pay inquiry as forfeitable. First, he argues that Article 42.15(a-1) imposes a sua sponte duty on the trial court, and the neglect of a sua sponte duty is a non-forfeitable error even if it is not fundamental. Second, he argues that the 2023 enactment of Article 42.15(a-2) signals that the inquiry is at least a category-two, waivable-only right. These arguments lack merit; the first because it misreads Proenza, and the second because it disregards the plain language of subsection (a-2). Appellant argues and the court of appeals concluded that Article 42.15(a-1) grants a category-two Marin right because it places a duty on the trial court to act sua sponte. Cruz, 2023 Tex. App. LEXIS 2987 at *8. Appellant maintains that Proenza dispensed with the need to address the fundamental nature of a right and instead opened Marin‘s categories one and two to sua sponte duties imposed by statute. He relies on Proenza‘s observations that, for example, “the responsibility of asserting forfeitable rights belongs to the litigants” and “the legal responsibility of assuring compliance with [non- forfeitable] rights falls squarely upon the trial judge.” 541 S.W.3d at 797 (citing Marin, 851 S.W.3d at 280) (internal punctuation omitted). But Proenza did not sacrifice fundamentality in determining a right’s preservation category. Rather, it reiterated that only fundamental rights fall into Marin‘s first two categories. Id. at 792. It reinforced that position by holding that an error’s categorization depends on its nature. Id. at 796. Ultimately, it found that the right at issue could not be forfeited because its vindication was “‘fundamental to the proper functioning of our adjudicatory system’ such that it should ‘enjoy special protection’ on par with other non-forfeitable rights.’” Id. at 798-99 (quoting Marin, 851 S.W.2d at 278). Appellant’s first argument is unfounded. Appellant’s second argument cites the 2023 enactment of Article 42.15(a-2). That subsection states, “A defendant may waive the requirement for the inquiry described by Subsection (a-1) to be on the record.” Tex. Code Crim. Proc. art. 42.15(a-2) (emphasis added). Appellant argues that the mention of “waive” signals that the right to the inquiry and the right to have it made on the record are at least category-two rights. In construing a statute, we look to its literal text, read its words and phrases in context, and construe them according to the rules of grammar and usage. Avery v. State, 359 S.W.3d 230, 237 (Tex. Crim. App. 2012). We presume that “words not defined in the statute are used in their ordinary and common sense.” Id. “Waive” is not defined by Article 42.15, and it ordinarily means to relinquish a legal right voluntarily or to refrain from pressing or enforcing a claim or rule. See Waive, BLACK’S LAW DICTIONARY (10th ed. 2014). Even Marin noted that a “litigant’s failure to speak up” is “often called a waiver[.]” Marin, 851 S.W.2d. at 280. “Waive” is found throughout the Code of Criminal Procedure, and in context it means different things. Sometimes it corresponds to a Marin, category-two, waivable- only right. E.g., Tex. Code Crim. Proc. art. 1.13 (allowing a jury waiver made in writing in open court); id. at art. 1.15 (allowing same for confrontation). Sometimes it corresponds to a category-three forfeiture. E.g., id. at art. 1.14 (b) (specifying that a defendant who does not object to a defective charging instrument “waives and forfeits the right to object”). And sometimes the manner of waiver is unspecified. E.g., id. at art. 1.14 (a) (allowing a defendant to “waive any rights secured him by law”). Article 42.15(a-2) is of the latter variety; it says that a defendant may waive the requirement to put the inquiry on the record, but it does not specify how. If the Legislature had meant to specify a formal waiver, it would have done so. Since it did not, the reference to a defendant’s ability to “waive” the record requirement did not elevate subsection (a-1)’s inquiry beyond Marin‘s category three. Concurring Opinion’s Mistakes The concurring opinion makes at least two mistakes. First, it says that we “primarily” granted review of retroactivity, implying that preservation was of secondary importance. But we granted three issues—period. Preservation was one of them, and it is the threshold issue, regardless of whether Appellant’s petition deemed it his first, second, or third ground for review. See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). Second, the concurring opinion sees Appellant’s complaint as focused on the lack of a record rather than the lack of any inquiry. That is a misreading of Appellant’s complaint, and even if it were a correct reading, it would be pointless to address the retroactivity of a record requirement for a forfeited right. Let’s start with Appellant’s complaint—is it about the lack of inquiry or lack of record? His ground for review asserts that his ability to “complain on appeal about the absence of the inquiry depends on the categorization of his right under Marin.” Petition for Discretionary Review at 12 (emphasis added). He frames the issue as “whether [he] can complain for the first time on appeal about the trial court’s failure to conduct an ability-to-pay inquiry.” Brief for Appellant at 16. He repeatedly claims that the right to the inquiry is non-forfeitable, arguing, for example, that the “right to an ability-to-pay inquiry is at least a category-two Marin right.” Id. at 24; see also id. at 26. His reply brief reiterates that claim. “A defendant may complain for the first time on appeal that no such inquiry occurred.” Reply Brief for Appellant at 15; see also id. at 16. And he reads the opinion below as endorsing that claim. Brief for Appellant at 32-33, 35; Reply Brief for Appellant at 8, 16. Appellant references the on-the-record requirement occasionally and mostly offhandedly. He says, for example, that he “did not complain in the trial court about the lack of an on-the-record ability-to-pay inquiry.” Brief for Appellant at 28. And he observes that the right “to an on-the-record ability-to-pay hearing is based on statute.” Id. at 29. But he chiefly uses the record requirement to illustrate the why the inquiry is non-forfeitable. For one thing, he argues that the record requirement was prompted by trial courts’ slow adoption of the inquiry. Id. at 31. For another, he argues that the later passage of Article 42.15(a-2) allowing a defendant to “waive” the record requirement signaled that the record requirement was absolute and thus that the inquiry was at least a category-two right. Id. at 36-39. Based on his ground of review, briefing, and reasoning, Appellant’s complaint is that he was denied an ability-to-pay inquiry and not that he was denied a record of it. But let’s suppose for the sake of argument that Appellant’s complaint really were about the lack of a record. Let’s ignore the record requirement’s public enactment before Appellant’s trial and its contemporaneous suggestion that the amendment was retroactive, and let’s pretend Appellant needed a crystal ball to object to the lack of a record. Even so, he forfeited the inquiry itself, making the retroactivity of its record requirement an academic question. And addressing it instead of preservation would sacrifice an opportunity to correct a lower court’s consequential misreading of Marin category errors. In short, the concurring opinion would entertain an abstraction at the expense of a weighty issue, perverting the purpose of discretionary review. See Tex. R. App. P. 66.3. And that may be its biggest mistake. Conclusion The Article 42.15(a-1) inquiry is not fundamental to the adjudicatory process, so it is forfeitable. Appellant forfeited his right to the inquiry by not objecting. We affirm the judgments of the courts below. Delivered: September 4, 2024 Publish
