NUMBER 13-23-00550-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARCELINO ELI ESPARZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 218TH DISTRICT COURT OF ATASCOSA COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and Fonseca Memorandum Opinion by Justice Fonseca
An Atascosa County jury convicted appellant Marcelino Eli Esparza of murder, a
first-degree felony, and the trial court sentenced him to sixty years’ imprisonment in the
Texas Department of Criminal Justice, Correctional Institutions Division. See TEX. PENAL
CODE ANN. § 19.02(c). By six issues on appeal, Esparza contends: (1) the evidence was
insufficient to support the jury’s verdict; (2) his trial counsel provided constitutionally ineffective assistance; (3) the trial court erred by denying his motion for mistrial; (4) the
trial court erred by admitting certain hearsay testimony; (5) the trial court erred by allowing
the recall of a witness who had violated the rule of sequestration; and (6) the trial court
erred by assessing court costs against him without inquiring as to his ability to pay. We
affirm.1
I. BACKGROUND
A one-count, three-paragraph indictment alleged that Esparza caused the death
of 47-year-old Margie Arguijo on or about August 30, 2020, by choking her and/or
impeding her breath or circulation using his “hand or hands or a shower curtain.”
Paragraph A alleged that he intentionally or knowingly caused her death, see id.
§ 19.02(b)(1); Paragraph B alleged that he intended to cause serious bodily injury and
committed an act clearly dangerous to human life which caused her death, see id.
§ 19.02(b)(2); and Paragraph C alleged that he intentionally or knowingly committed or
attempted to commit an act clearly dangerous to human life which caused her death, and
that he was then and there in the course of intentionally or knowingly committing the
felony offense of assault-family violence by impeding breath or circulation. See id.
§ 19.03(b)(3). The indictment also contained enhancement paragraphs alleging that
Esparza had previously been finally convicted of two felonies: (1) tampering with evidence
in Defiance County, Ohio, in 2007; and (2) aggravated robbery in Bexar County in 1991.
See id. § 12.42(d).
At trial, Jaimie Arguijo testified that Esparza met her mother Margie in May of 2020
1 This appeal was transferred from the Fourth Court of Appeals in San Antonio pursuant to an order
issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001. We are required to follow the precedent of the transferor court to the extent it differs from our own. TEX. R. APP. P. 41.3.
2 on Facebook. Margie had been living with Jaimie at that time but she moved to live with
Esparza at an RV park in Poteet. On August 29, 2020, Margie went to Jaimie’s house
and spent the day with Jaimie and her family. When Jaimie’s husband asked Margie to
spend the night, Margie said no because “she had to go home to see if [Esparza] was
out” of the RV. Jaimie explained that Margie planned to move her residence again, this
time to live with her previous boyfriend.
Andres Galvan lived at the same RV park in Poteet. He testified that, at around
4:00 a.m. on August 30, 2020, he heard his dog barking, and he went outside and saw
Esparza sharpening a knife. At 8:00 a.m., Esparza walked up to Galvan’s RV and said he
“needed help.” Galvan got dressed and went to Esparza’s RV, which was “pitch dark”
inside. Galvan saw a woman lying in the RV’s bathtub, and Esparza asked Galvan to pick
the woman up. Galvan noticed the woman was “pale,” so he “got scared” and called 911.
At some point, Galvan gave the phone to Esparza, and Esparza told the dispatcher that
the woman was unconscious, barely breathing, and had a weak pulse. Esparza was
instructed over the phone to perform CPR on the woman, and he did so. When medics
and police arrived, they found that the woman, identified as Margie, was cold to the touch
and had been deceased for several hours.
Investigators observed “ligature marks underneath [Margie’s] neck.” An autopsy
showed that Margie’s thyroid cartilage was fractured, there were petechiae on her left
eye, her ribs were fractured, and there were several healing abrasions on her face and
upper abdomen. The forensic pathologist testified that the cause of death was
strangulation, and the manner of death was most likely homicide due to the thyroid
cartilage fracture. He also stated that, although there was methamphetamine found in
3 Margie’s system, she did not die of an overdose.
Esparza told police at the scene that, earlier that morning, he was “using an angle
grinder to restore a machete for someone.” He said he told Margie that “he was going to
leave,” but she “didn’t want him to.” Esparza told police that went back inside his RV “to
let her know that he was leaving,” but when he tried to shut the door to the bathroom, he
noticed Margie was “slumped over,” blocking the doorway. He told police that no one
could have gone in or out of the RV while he was outside sharpening the machete.
In searching the RV, police discovered a shower curtain which an officer described
as follows:
There was a very, very thin, almost like a Dollar Store material, a very thin, thin plastic, yellowish in color and it had been deformed by being stretched. It was wrapped a couple of times around the shower curtain rod and at the top you could see obvious signs and if you take a piece of plastic and pull it, that discoloration and stretch that you get, there was a section of shower curtain at the top that exhibited that. In the middle, it was twisted around and around and around like you would be twisting up a newspaper or something; and then at the bottom, it was stretched and disfigured again. And there was a small piece of the shower curtain that had been completely torn away from the shower curtain.
Esparza was convicted and, after pleading true to the enhancement paragraphs in
the indictment, he was sentenced as set forth above. This appeal followed.
II. EVIDENTIARY SUFFICIENCY
By his first issue, Esparza contends the evidence was “factually and legally
insufficient” to support his conviction. He sets forth the language of the indictment and
penal code § 19.02, and he cites outdated authority establishing the applicable standard
of review. See, e.g., Zuniga v. State, 144 S.W.3d 477, 481–84 (Tex. Crim. App. 2004)
(setting forth factual sufficiency standard), abrogated by Brooks v. State, 323 S.W.3d 893,
899–900 (Tex. Crim. App. 2010) (plurality op.) (abolishing factual sufficiency review in
4 Texas). He then provides the following argument, which we reproduce in its entirety:
A scintilla of evidence was not introduced by the State that [Esparza] (1) intentionally and knowingly caused the death of Margie Arguijo; (2) with intent to cause serious bodily injury to Margie Arguijo, [he] committed an act clearly dangerous to human life that caused the death of Margie Arguijo; or (3) committed the felony of Assault Family Violence-Impeding Breath/Blood/Circulation. While circumstantial evidence can be evidence, insufficient of even that was presented. As such, this Court should find that there was legally and factually insufficient evidence to support the jury’s verdict, and the conviction of [Esparza] should be reversed and a verdict of acquittal entered.
Esparza does not cite any portion of the record to support this issue. He does not
explain the facts of the case,2 nor does he apply any authority to those facts. See TEX. R.
APP. P. 38.1(i) (requiring an appellant’s brief to contain “a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record”); Wolfe
v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (noting that “an appellate court has
no obligation to construct and compose an appellant’s issues, facts, and arguments with
appropriate citations to authorities and to the record” (internal quotation omitted)). In the
absence of anything resembling legal analysis, we overrule the issue as inadequately
briefed.3
III. INEFFECTIVE ASSISTANCE OF COUNSEL
By his second issue, Esparza contends that his court-appointed trial counsel
rendered constitutionally ineffective assistance. See U.S. CONST. amend. VI; TEX. CONST.
2 The “Statement of Facts” section of Esparza’s brief similarly fails to describe any facts shown by
the evidence at trial. See TEX. R. APP. P. 38.1(g) (“The brief must state concisely and without argument the facts pertinent to the issues or points presented.”). 3 Even if the issue was adequately briefed, we agree with the State that the witness testimony of
the victim’s daughter, Esparza’s neighbor, the investigators, and the forensic pathologist supports the jury’s verdict. See Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (“Evidence is sufficient to support a criminal conviction if a rational jury could find each essential element of the offense beyond a reasonable doubt.”); see also TEX. PENAL CODE ANN. § 19.02(b) (setting forth essential elements of murder).
5 art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051; Strickland v. Washington, 466 U.S.
668, 686 (1984). To obtain a reversal of a conviction on grounds of ineffective assistance
of counsel, an appellant must show: (1) counsel’s performance fell below an objective
standard of reasonableness and (2) counsel’s deficient performance prejudiced the
defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding.
Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland, 466 U.S.
at 687). “Deficient performance means that ‘counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’”
Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466
U.S. at 687). “The prejudice prong of Strickland requires showing ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Id. at 248 (quoting Strickland, 466 U.S. at 694). “Any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999).
The burden is on the appellant to prove ineffective assistance of counsel by a
preponderance of the evidence. Id. The appellant must overcome the strong presumption
that counsel’s conduct fell within the wide range of reasonable professional assistance
and that his actions could be considered sound trial strategy. See Strickland, 466 U.S. at
689. “[W]e commonly assume a strategic motive if any can be imagined and find counsel’s
performance deficient only if the conduct was so outrageous that no competent attorney
would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
6 A. Enhancement Paragraph
Esparza contends his trial counsel rendered ineffective assistance for three
reasons. First, he argues that counsel erred by “hav[ing] his client plead ‘true’” to the first
enhancement paragraph alleging that he was previously convicted of the felony offense
of tampering with evidence in Ohio in 2007. Esparza notes that, according to a copy of
an Ohio judgment which was entered into evidence at the punishment phase, his
sentence for that offense was suspended and he was placed on probation; he argues
without reference to authority that the Ohio conviction was therefore not “final.” He also
contends that “no analysis ever occurred” concerning whether the Ohio offense “would
have comported with Tampering with Evidence as set forth in Texas Penal Code [§] 37.09,
which can be either a felony or a misdemeanor.”
Under the habitual felony offender (HFO) statute, when a defendant is convicted
of a felony and it is shown that he “has previously been finally convicted of two felony
offenses, and the second previous felony conviction is for an offense that occurred
subsequent to the first previous conviction having become final,” the applicable
punishment range is enhanced to twenty-five to ninety-nine years. TEX. PENAL CODE ANN.
§ 12.42(d). “An out-of-state prior final felony conviction can be used to enhance a
sentence imposed in Texas.” Ex parte Pue, 552 S.W.3d 226, 231 (Tex. Crim. App. 2018).
(citing U.S. CONST. art. IV, § 1 (Full Faith and Credit Clause)). Whether an out-of-state
prior conviction is “final” under § 12.42(d) is determined in accordance with Texas law,
and it is the State’s burden to prove finality. Id. at 229, 231. A conviction is not “final” for
enhancement purposes when the imposition of sentence has been suspended and
probation granted, though “a probated sentence can turn into a final conviction if probation
7 is revoked.” Id. at 230–31.
At the punishment phase, the State offered into evidence a December 18, 2007
judgment in which Esparza was convicted in Ohio of aggravated assault and tampering
with evidence. See OHIO REV. CODE ANN. §§ 2903.12(a)(2), 2921.12(a)(1). The judgment
states that Esparza was sentenced to seventeen months’ and three years’ confinement
in the Ohio Department of Rehabilitation and Correction for the respective offenses, with
the sentences to run consecutively. For purposes of the HFO statute, “any conviction not
obtained from a prosecution under [the Texas Penal Code] shall be classified as . . . [a]
‘felony of the third degree’ if imprisonment in the Texas Department of Criminal Justice or
another penitentiary is affixed to the offense as a possible punishment.” TEX. PENAL CODE
ANN. § 12.41(1). Because imprisonment in a penitentiary was a possible punishment for
the Ohio tampering charge, it was a felony for purposes of the HFO statute. See id.;
Fowler v. State, 567 S.W.3d 403, 405 (Tex. App.—San Antonio 2018, no pet.) (concluding
that appellant’s federal escape conviction could be used for enhancement purposes
because appellant was sentenced to twelve months’ imprisonment for the offense, and it
was therefore “self-evident that imprisonment in a penitentiary ‘[was] affixed to the offense
as a possible punishment’”).
As Esparza emphasizes, however, the punishment-phase evidence also included
a second judgment, dated July 31, 2008, reflecting that the Ohio court granted Esparza’s
“Motion for Judicial Release.” The judgment suspends “the balance of the . . . [prison]
term previously imposed” and places Esparza on probation for four years.4 The State
does not address whether the July 31, 2008 judgment rendered Esparza’s tampering
4 The judgment also states: “The Court reserves the right to reimpose the prison term.”
8 conviction non-final for purposes of the HFO statute.5 See Pue, 552 S.W.3d at 230–31.
Even assuming (1) that counsel advised Esparza to plead true to the first
enhancement paragraph and (2) that such advice constituted ineffective assistance, we
cannot conclude that Esparza was sufficiently prejudiced so as to entitle him to reversal.
Regarding the second Strickland prong, Esparza asserts without reference to the record
or legal authority that “[t]here is only harm in allowing an offense that would not be
admissible and would not increase the range of punishment as was done in this cause.”
However, there is no dispute that the second enhancement allegation was true; thus,
even if Esparza pleaded not true to the first paragraph and the trial court found it not true,
he would still have been subject to a mandatory fifteen-year minimum prison term under
the repeat felony offender (RFO) statute. See TEX. PENAL CODE ANN. § 12.42(c)(1). And,
as Esparza notes, enhancement in this case did not increase the maximum punishment
because murder is a first-degree felony which already carries a maximum punishment of
ninety-nine years’ imprisonment. See id. § 12.32(a).
On this record, we do not find “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” See
Strickland, 466 U.S. at 694.
B. Jury Unanimity
Second, Esparza argues his counsel was ineffective because he failed to object to
the indictment or the jury charge, both of which he claims allowed for a non-unanimous
verdict. Specifically, he contends that a non-unanimous verdict was possible because the
5 We note that the Texas Court of Criminal Appeals has held that “shock” probation—in which the
defendant is convicted, punishment is assessed, and sentence is imposed, but “later the further execution of the sentence is suspended”—renders a conviction “non-final for purposes of enhancement.” Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992).
9 offense alleged in Paragraph B of the indictment required proof of a different culpable
mental state (intent to cause serious bodily injury) than the offenses alleged in
Paragraphs A or C (intent to cause death and intent to commit an act clearly dangerous
to human life, respectively). See TEX. PENAL CODE ANN. § 19.02(b). He asserts “there is
no possible strategy argument” for counsel’s failure to object to the indictment and jury
charge on this basis.
Texas law requires the jury in a felony case to reach a unanimous verdict about
“the specific crime that the defendant committed.” Cosio v. State, 353 S.W.3d 766, 771
(Tex. Crim. App. 2011) (citing Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App.
2008)); see TEX. CONST. art. V, § 13. This means that each juror must agree that the
defendant committed the same specific criminal act. Ngo v. State, 175 S.W.3d 738, 745
(Tex. Crim. App. 2005). However, jurors need not agree on all the underlying facts that
make up a particular element of the offense. Id. at 747.
The Texas Court of Criminal Appeals has held that “intentional[] or knowing[]”
murder under § 19.02(b)(1) and felony murder under § 19.02(b)(3) are “different ways of
committing the same offense.” Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App.
1982). Therefore, the unanimity requirement is not violated when the jury is charged
disjunctively on those allegations. See id. Several Texas appellate courts, including the
transferor court in this case, have similarly concluded that “intentional[] or knowing[]”
murder under § 19.02(b)(1) and “act clearly dangerous to human life” murder under
§ 19.02(b)(2) are different manners and means of committing the same offense, for which
jury unanimity is not required. See Diko v. State, 488 S.W.3d 855, 859 (Tex. App.—Fort
Worth 2016, pet. ref’d) (noting that “[§] 19.02(b)(1) and 19.02(b)(2) do not describe
10 different offenses; rather, they set forth alternative methods of committing the same
offense”); Garcia v. State, 246 S.W.3d 121, 141 (Tex. App.—San Antonio 2007, pet. ref’d)
(“[W]hether the jury determined that [appellant] intentionally or knowingly caused the
death of [victim], or that he caused her death by committing an act clearly dangerous to
human life with the intent to cause serious bodily injury, there was only one single crime
of murder.”); Yost v. State, 222 S.W.3d 865, 877 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d) (“Although [§] 19.02(b)(1) and (b)(2) differ in their descriptions of the mental
state required for culpability, jurors are not required to agree on the defendant’s specific
mental state; rather, they need only agree that the defendant possessed one of the
alternate mental states that satisfy the element of intent under the statute.”); Barfield v.
State, 202 S.W.3d 912, 916 (Tex. App.—Texarkana 2006, pet. ref’d) (noting, where
[§] 19.02(b)(1) and (b)(2) were charged disjunctively, that “[t]he jury’s verdict represents
the necessary unanimous finding that [appellant] murdered [the victim] under [§] 19.02 of
the Texas Penal Code”).
The record does not affirmatively establish that Esparza’s trial counsel provided
ineffective assistance on this basis. See Thompson, 9 S.W.3d at 813.
C. Extraneous Offense Evidence
Third, Esparza contends his counsel was ineffective by failing to timely object to a
“[v]ideo [which] was presented to the jury regarding [Esparza] going to prison” for an
unrelated offense. He directs us to a portion of the trial record in which his counsel
attempted to object to a video on Rule 404(b) grounds the morning after the video was
admitted into evidence and played for the jury. Counsel explained that she did not initially
object because she “didn’t want to draw more attention to it.” The State offered to redact
11 the subject video so that, “if the jury goes back and looks for it, [the offending statements]
won’t be there.” The trial court granted defense counsel’s objection to that extent, and it
also granted counsel’s request for a limiting instruction. It denied counsel’s motion for
mistrial.
Esparza claims admission of the video was “harmful and prejudicial.” He cites
Lyons v. McCotter, 770 F.2d 529, 534 (5th Cir. 1985), in which it was stated: “To pass
over the admission of prejudicial and arguably inadmissible evidence may be strategic;
to pass over the admission of prejudicial and clearly inadmissible evidence, as here, has
no strategic value.”
Esparza does not specify where the video may be found in the appellate record,
see TEX. R. APP. P. 38.1(i); thus, we are unable to independently evaluate whether the
subject statements were indeed “clearly inadmissible,” as he claims.6 Nevertheless, even
assuming that they were “clearly inadmissible,” we cannot conclude that either Strickland
prong has been met. Counsel offered a strategic reason for her decision not to timely
object to the video. Even “assuming counsel’s challenged action, though strategic, could
not be considered soundly strategic, that would not necessarily establish that trial counsel
performed deficiently under the first prong of Strickland because counsel’s performance
must be judged by the totality of the representation.” Robertson v. State, 187 S.W.3d 475,
483–84 (Tex. Crim. App. 2006) (footnote omitted) (noting that “[i]solated instances in the
record reflecting errors of omission or commission do not render counsel’s performance
ineffective, nor can ineffective assistance of counsel be established by isolating one
6 The State’s brief asserts that the video is the record as State’s Exhibit 8. However, State’s Exhibit
8 is a 25-second video recording, without any audio, apparently taken from inside the RV where Margie died. No other video recordings are part of the appellate record in this case.
12 portion of trial counsel’s performance for examination”). As to prejudice, it is undisputed
that neither party mentioned the offending statements to the jury. Further, the trial court
issued a limiting instruction and directed the State to redact the video in the event the jury
wished to review it during its deliberations. Esparza has not established his entitlement
to reversal on this basis.
We overrule Esparza’s second issue.
IV. MOTION FOR MISTRIAL
By his third issue, Esparza contends the trial court erred by denying his motion for
mistrial relating to the video described above in our discussion of the third part of
Esparza’s second issue. He claims that the video contained evidence of an “alleged
extraneous offense” and his “prior prison experience” and was therefore inadmissible
under Texas Rule of Evidence 404(b).
Esparza cites the portion of the record in which his counsel moved for mistrial, but
he does not provide any record reference to the video itself. See TEX. R. APP. P. 38.1(i).
Moreover, though he cites Rule 404(b) and cases applying the rule, he cites no legal
authority concerning the applicable standard of review, when a motion for mistrial is
timely, or when a trial court errs in denying a motion for mistrial. See id. We overrule
Esparza’s third issue as inadequately briefed.
V. ADMISSION OF EVIDENCE
By his fourth issue, Esparza contends that the trial court abused its discretion by
“allowing hearsay statements” by Jaimie “to be presented to the jury.” He points to a
portion of the trial record in which his counsel, outside the presence of the jury, requested
that the State redact certain statements from a video recording which was going to be
13 admitted into evidence. Counsel explained that, in the video, investigators can twice be
heard telling Esparza that “[Jaimie] told them that [Margie] was afraid of [Esparza].”7 The
trial court denied counsel’s request to have these statements redacted from the video.
On appeal, Esparza contends that the statements were hearsay; however, he does
not explicitly claim that the statements were inadmissible, nor does he provide any
argument that would support such a conclusion. See TEX. R. EVID. 801, 803, 804 (setting
forth various exclusions and exceptions to the rule against hearsay). Moreover, he does
not cite or apply any legal authority setting forth the hearsay rule or otherwise concerning
whether and when hearsay statements are inadmissible. Finally, though he cites authority
concerning reversible error, see TEX. R. APP. P. 44.2(b), his entire argument as to how he
was harmed by the trial court’s alleged error is as follows: “In this case, the hearsay
introduced to the jury was of a highly prejudicial nature that cannot be considered to be
‘not influence or had only a slight influence [sic].’” The issue is overruled as inadequately
briefed. See TEX. R. APP. P. 38.1(i); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.
App. 2011) (noting that non-constitutional error is not reversible “if the appellate court,
after examining the record as a whole, has fair assurance that the error did not influence
the jury, or influenced the jury only slightly” (emphasis omitted)).
By his fifth issue, Esparza contends that the court erred by allowing Jaimie to be
recalled as a rebuttal witness in violation of Texas Rule of Evidence 614. See TEX. R.
EVID. 614 (providing that the trial court must, on any party’s request, instruct witnesses to
remain outside the courtroom so that they cannot hear other witnesses’ testimony). He
7 Again, Esparza does not provide any record references to the video itself, and the State incorrectly
refers to the video as State’s Exhibit 8.
14 cites a portion of the trial record in which the prosecutor requested to recall Jaimie after
the defense closed its case-in-chief. He does not provide a record reference to Jaimie’s
rebuttal testimony, nor does he describe the content of that testimony, nor does he explain
how the admission of that testimony harmed him. See Webb v. State, 766 S.W.2d 236,
240 (Tex. Crim. App. 1989) (“[A] violation of [Rule 614] is not in itself reversible error, but
only becomes so where the objected-to testimony is admitted and the complaining party
is harmed thereby.”); Haas v. State, 498 S.W.2d 206, 210 (Tex. Crim. App. 1973) (noting
that, when determining whether it was error to allow testimony of a witness who has
violated the Rule, “[t]wo relevant criteria are: (1) did the witness actually hear the
testimony of the other witness, and (2) did the witness’[s] testimony contradict the
testimony of the witness that he allegedly heard”); see also TEX. R. APP. P. 44.2(b).
Esparza’s fifth issue is overruled as inadequately briefed. See TEX. R. APP. P. 38.1(i).
VI. COURT COSTS
Finally, by his sixth issue, Esparza asserts that the trial court erred by assessing
$315 in court costs against him without holding an ability-to-pay hearing on the record
pursuant to Texas Code of Criminal Procedure article 42.15(a-1). See TEX. CODE CRIM.
PROC. ANN. art. 42.15(a-1) (“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 . . . , 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.”).
Esparza concedes that he did not request an ability-to-pay inquiry on the record,
nor did he object to the lack of such an inquiry. See id. art. 42.15(a-2) (“A defendant may
waive the requirement for the inquiry described by Subsection (a-1) to be on the record.”);
15 see also TEX. R. APP. P. 33.1 (concerning preservation of error for appeal). In Cruz v.
State, the Texas Court of Criminal Appeals held that, because “[a]n ability-to-pay inquiry
is not fundamental to the adjudicatory system,” it is a Marin category-three right—i.e., it
must be “implemented upon request or else forfeited.” 698 S.W.3d 265, 269 (Tex. Crim.
App. 2024); see Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).8 In light of
the foregoing, we conclude Esparza forfeited his right to an on-the-record article 42.15
ability-to-pay hearing by failing to request one in the trial court. See Cruz, 698 S.W.3d at
271; TEX. R. APP. P. 33.1(a). We overrule his sixth issue.
VII. CONCLUSION
The trial court’s judgment is affirmed.
YSMAEL D. FONSECA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 13th day of March, 2025.
8 The Cruz Court observed that “missing out” on an article 42.15 hearing “would not doom a
defendant to undue hardship” because “[t]he same relief from fine and costs . . . is available forever after sentencing” under article 43.035. Cruz v. State, 698 S.W.3d 265, 269 (Tex. Crim. App. 2024); see TEX. CODE CRIM. PROC. ANN. art. 43.035(a) (“If a defendant notifies the court that the defendant has difficulty paying the fine and costs in compliance with the judgment, the court shall hold a hearing to determine whether that portion of the judgment imposes an undue hardship on the defendant.”); id. art. 43.035(c) (“If the court determines at the hearing under Subsection (a) that the portion of the judgment regarding the fine and costs imposes an undue hardship on the defendant, the court shall consider whether the fine and costs should be satisfied through one or more methods listed under Article 42.15(a-1).”).