Joseph Lee Cantu v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00322-CR

JOSEPH LEE CANTU, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Hall County, Texas Trial Court No. 4035, Honorable Stuart Messer, Presiding

July 29, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Joseph Lee Cantu appeals from the trial court’s judgment adjudicating him guilty

of the offense of evading arrest with a motor vehicle (with a deadly weapon finding) and

sentencing him to serve seven years in prison. On appeal, he contends the trial court

violated his due process rights in failing to inquire into his ability to pay the court-ordered

fees. We affirm. Background

In December 2019, appellant was placed on deferred adjudication community

supervision for a period of four years. As part of that proceeding, he was assessed a

$4,000 fine, required to complete 200 hours of community service, and required to pay

$350 in attorney’s fees and $381 in court costs. His community supervision was subject

to certain terms and conditions.

About three years later, the State filed a motion to adjudicate appellant’s guilt in

which it alleged appellant violated several conditions. Appellant pleaded “true” to all the

allegations. Thereafter, the trial court revoked appellant’s community supervision,

adjudicated him guilty of the offense, and sentenced him as noted above.

Analysis

Appellant sets forth two issues on appeal. In his first, he acknowledges that the

trial court did not err in adjudicating him guilty of the offense for which he was placed on

community supervision because he pleaded “true” to each allegation. See Moses v.

State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979) (a plea of true standing alone is

sufficient to support a trial court’s revocation order); Barcenas v. State, Nos. 07-19-00249-

CR, 07-19-00250-CR, 2021 Tex. App. LEXIS 5165, at *8 (Tex. App.—Amarillo June 29,

2021, no pet.) (mem. op., not designated for publication) (noting same). However, he

claims the trial court violated his due process rights because it did not inquire into his

ability to pay the assessed fines and costs. Thus, it should not have revoked his

community supervision for non-payment of same. We overrule the issue.

As noted, appellant pleaded true to multiple violations. Any one violation

supported revocation, as appellant acknowledged. Thus, any purported failure to

2 investigate his ability to pay the fines was harmless for other grounds permitted

revocation. Nor did he object below to the purported error on due process grounds; that

effectively waived his complaint. See Jones v. State, No. 07-23-00359-CR, 2024 Tex.

App. LEXIS 1967, at *3 (Tex. App.—Amarillo Mar. 20, 2024, no pet.) (mem. op., not

designated for publication) (stating that “[a] complaint of a due process violation requires

preservation in the trial court lest it be forfeited on appeal”). And, because the failure to

pay fines and court-ordered fees was not the sole basis for the revocation of appellant’s

community supervision, the State was not required under article 42A.751(i) of the Texas

Code of Criminal Procedure to prove appellant’s ability to pay them. See Adame v. State,

No. 07-19-00007-CR, 2019 Tex. App. LEXIS 10765, at *10 (Tex. App.—Amarillo Dec. 11,

2019, no pet.) (mem. op., not designated for publication) (stating that when the State

alleges more than one allegation at the revocation hearing, it need not prove the

defendant had the ability to pay or that his failure to do so was willful). Thus, we overrule

issue one.

As for issue two, appellant seems to suggest that article 42.15 of the Code of

Criminal Procedure obligated the court to inquire into his ability to pay fines or costs

assessed in the judgment. Statute does say that a trial 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. However, when it delays

payment of the obligation until release on parole, it is unnecessary to remand for the trial

court to make an on-the-record-finding about the ability to pay; such a delay indicates the

lack of current ability. See Woodard v. State, No. 07-23-00377-CR, 2024 Tex. App.

LEXIS 4642, at *11 (Tex. App.—Amarillo July 2, 2024, no pet.) (mem. op., not designated

3 for publication); Stanberry v. State, No. 07-23-00194-CR, 2024 Tex. App. LEXIS 1066

(Tex. App.—Amarillo Feb. 9, 2024, no pet.) (mem. op., not designated for publication);

Mayo v. State, No. 07-23-00243-CR, 2024 Tex. App. LEXIS 2396 (Tex. App.—Amarillo

April 4, 2024, pet. filed) (op. on reh’g); Sparks v. State, No. 07-23-00215-CR, 2024 Tex.

App. LEXIS 2574, at *7 (Tex. App.—Amarillo Apr. 12, 2024, no pet.) (mem. op., not

designated for publication). Payment was so delayed here via the judgment. 1 Thus, it

implicitly found appellant lacked the ability to currently pay, Woodward, supra, and opted

to delay the payment until later. We overrule the issue.

Having overruled appellant’s issues, we affirm the judgment of the trial court.

Brian Quinn Chief Justice

Do not publish.

1 The judgment includes the statement, “The Court ORDERS that upon release from confinement,

Defendant proceed immediately to the State Parole Division. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above.”