Opinion
03-24-00012-CR
08-09-2024
Duran Jermon Carradine, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 81172, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
Before Justices Baker, Triana, and Kelly
MEMORANDUM OPINION
Thomas J. Baker, Justice
Duran Jermon Carradine was charged with three counts of aggravated sexual assault of B.T., who was a child younger than fourteen years old. See Tex. Penal Code § 22.021(a). The jury acquitted Carradine of the first two counts but convicted him of the third count. At the end of the punishment hearing, the jury assessed his punishment at life imprisonment and a $10,000 fine. See id. § 12.32. The trial court rendered its judgments of acquittal and conviction consistent with the jury's verdicts. In three issues on appeal, Carradine contends that the trial court erred by allowing into evidence a copy of B.T.'s forensic interview and by imposing a $10,000 fine. We will affirm the trial court's judgment of conviction.
Originally, the State also alleged that Carradine committed the offense of indecency with a child, see Tex. Penal Code § 21.11, but the State abandoned that count before trial.
Because the complainant was a minor when the alleged offenses occurred, we will refer to her by using a pseudonym and refer to her family members by their relationships to her. See Tex. R. App. P. 9.10 (defining sensitive information).
BACKGROUND
After Carradine married Mother, the couple moved into a home with Mother's two daughters from a previous relationship, B.T. and Z.D., who were five years old and seven years old, respectively, at the time of the alleged offenses. While living together, the couple had a son, J.C. One day shortly after J.C. was born and while Carradine was out of the house, Z.D. told Mother that she was tired from not getting enough sleep. When Mother inquired further, Z.D. told Mother that Carradine would come into her room and take her downstairs, but Z.D. related that she could not tell Mother what happened when Carradine took her downstairs. At that point, Mother called her mother ("Grandmother") and her stepfather ("Grandfather"), told her parents to come pick up her and the children, and asked Grandmother to call the police because she wanted the police there while she moved out of the home.
Before Grandparents arrived, Carradine returned home, but Mother did not mention what Z.D. had said and did not mention that she had called Grandparents. When Grandmother, Grandfather, and the police arrived at her home, Mother told her two daughters to go to Grandmother and Grandfather. The police entered the home and monitored the situation as Mother removed items from the home. During that time, Carradine either left the home or was in the bathroom, but the police did not interact with Carradine that night. After gathering some of her belongings, Mother moved into Grandparents' home with her three children. Subsequently, Mother took B.T. and Z.D. to a sexual-assault nurse examiner ("SANE") for an evaluation and to a forensic interviewer.
Following their investigation, the police took Carradine into custody. While in custody, Carradine complained that he was having chest pains, and the police transported him to the hospital. Once the medical staff cleared Carradine, the police told Carradine to place his hands behind his back to allow the police to place handcuffs on him again. Carradine appeared to comply before running away and trying to escape the hospital. The officers chased Carradine and caught up with him in the hospital parking lot before handcuffing him and placing him in the back of a police car. The escape attempt was captured by the body camera worn by one of the arresting officers.
Carradine was charged with three counts of aggravated sexual assault of B.T. for intentionally or knowingly causing the penetration of her sexual organ, her anus, and her mouth with his sexual organ. See Tex. Penal Code § 22.021(a). During the guilt-innocence phase, the State called the following witnesses who testified regarding the events set out above: police officers, Mother, and Grandfather. Additionally, the State called the SANE who evaluated B.T., B.T., and the forensic interviewer who interviewed B.T. Furthermore, a recording of the forensic interview was admitted into evidence and played for the jury.
The SANE testified that B.T. told her that someone had done something to her body that she did not like or that hurt her and that B.T. referred to her vagina as her "do-do" and to a penis as a "slingy." Specifically, the SANE related that B.T. stated that Carradine showed her his "slingy" "everyday" when no one was around; that B.T. pointed to her vagina, butt, and mouth when asked if Carradine's "slingy" touched any parts of her body; that B.T. stated that this type of contact happened "[l]ots of days" while Mother was at work; that B.T. described "[s]not" coming out when Carradine placed his "slingy" on her butt, "do-do," or mouth; that B.T. mentioned that the snot would get in her mouth and "taste[d] nasty"; that B.T. stated that Carradine touched her on the inside and the outside when touching her "do-do," butt, and mouth; and that B.T. mentioned that Carradine would threaten her with a taser. In her cross-examination, the SANE testified that B.T. also said that no one had ever touched her vagina, butt, or breasts but clarified during her redirect that children do not always understand that the term touching can mean more than contact by a hand. During the SANE's testimony, a report that she prepared documenting the examination was admitted into evidence and contained a summary of the information B.T. gave during the examination, and the summary is consistent with the SANE's testimony summarized above.
Next, B.T. testified that Carradine touched her private parts with his hands and with the part of his body "that boys [use to] go [to] . . . the bathroom, like [to] pee." B.T. also testified that Carradine did not use his private part to touch her private part but did use it to touch her butt and mouth. Additionally, B.T. described something coming out of Carradine's private part that tasted bad when he put his private part in her mouth on multiple occasions. Next, B.T. related that Carradine touched her bottom with his private part one time while she was sleeping, that she woke up and saw him, that she did not feel Carradine's penis on the inside of her bottom, that Carradine's private part went "up and down" on her butt rather than in and out, that Carradine's private part did not touch her butt where she went to the bathroom, and that he never touched her bottom again. B.T. later stated that she did not remember Carradine's private part going inside her bottom. Further, B.T. recalled that Carradine did not touch her private part during that incident and that there was no other time where Carradine touched her private part. Although B.T. stated that she knew Carradine touched her private part after watching her forensic interview, she explained that Carradine touched her on the outside of her private part and never touched her on the inside. B.T. testified that she did not remember if Carradine touched her private part with his private part, that she was nervous while testifying, that it was difficult to discuss the incidents in the courtroom, and that she had difficulty remembering what happened because several years had passed; however, B.T. also clarified that she told the truth when she was asked what happened several years ago.
Following B.T.'s testimony, the State sought to enter the forensic interview of B.T. on the ground that she became unavailable during her testimony and on the ground that it was a prior consistent statement used to rebut a charge of recent fabrication, and the recording of the interview was admitted and played for the jury over defense objection. On the recording, B.T. made the following statements in response to questions by the interviewer:
• Carradine did bad things to multiple areas of her body by putting his private part in her bottom, her private part, and her mouth;
• Carradine did these acts every day;
• Carradine would tell her not to use her teeth during these incidents;
• Snot came out of Carradine's private part more than five times;
• The snot went inside her mouth;
• Carradine took a picture of his private part being in her bottom and showed her the picture;
• Her bottom started bleeding because Carradine rubbed it too hard with his private part; and
• Carradine told her not to tell anyone.On the recording, B.T. also demonstrated with anatomically correct dolls how Carradine would pull his and her pants off, place his "do do" in her "privacy," move his body back and forth, and place his private part in her mouth. B.T. also imitated Carradine's loud and heavy breathing during these acts.
During her testimony, the interviewer explained that B.T. should not know about the aspects of sexual behavior she described given her age, that victims can have difficulty remembering details with the passage of time, and that a victim's ability to disclose can be affected by being in a courtroom and by being near the alleged perpetrator.
After considering the evidence, the jury convicted Carradine of the offense pertaining to the penetration of B.T.'s mouth (count 3) but found him not guilty of the charges pertaining to the penetration of her vagina (count 1) and anus (count 2).
During the punishment phase, Mother testified that Carradine was not violent during the early part of their relationship but changed once they got married. Mother also described Carradine's stealing some of the items she left in the home when she moved out and his driving around the neighborhood where her parents lived after she moved into their home. Additionally, Mother related how she felt suicidal after learning of the allegations because she felt like she let her children down and how her two daughters either were or wanted to be in therapy and were uncomfortable with their bodies now. Next, Z.D. testified that Carradine abused her by pulling her pants down and placing his private part on the outside of her private part. In his case, Carradine called his father, who testified that Carradine was a good child and that Carradine could be rehabilitated.
Following closing arguments by the parties, the jury sentenced Carradine to life imprisonment and imposed a $10,000 fine. The trial court later rendered its judgment of conviction and judgments of acquittal in a manner consistent with the jury's verdicts. The written judgment of conviction reflects that the trial court conducted an inquiry into Carradine's ability to pay the fine and determined that "[u]pon release from confinement," he must "proceed without unnecessary delay to the District Clerk's office . . . to pay or make arrangements to pay any fines, court costs, reimbursement fees, and restitution due."
Carradine appeals his conviction.
DISCUSSION
In his first two issues, Carradine contends that the trial court erred by overruling his objection to the admission of the recording of B.T.'s forensic interview. In his final issue, Carradine argues that the trial court erred by imposing the $10,000 fine.
Recording of Forensic Interview
When asserting that the trial court erred by admitting into evidence a recording of the forensic interview, Carradine first notes that the State sought to introduce the recording on the basis that B.T. was unavailable to testify given that she was having a difficult time answering some of the questions posed by the State. See Tex. Code Crim. Proc. art. 38.071 (allowing recording of statement by child younger than thirteen years of age to be admitted when child is "unavailable to testify in the presence of the defendant"). However, Carradine asserts, as he did at trial, that B.T. was available and did testify and, therefore, urges that the recording could not be admitted due to her alleged unavailability. Further, Carradine contends that although the trial court overruled his objection contesting B.T.'s unavailability, the trial court did not make a specific finding that she was unavailable as required by statute. See id.; Edwards v. State, 107 S.W.3d 107, 109-10 (Tex. App.-Texarkana 2003, pet. ref'd). In his second issue, Carradine asserts that the State during trial seemed to suggest that the forensic interview could be admitted as a prior consistent statement under the Rules of Evidence, see Tex. R. Evid. 801(e)(1)(B), but he argues that the recording was not admissible for that reason because there was no suggestion that B.T. had recently fabricated her claim or acted from an improper motive and because her statements on portions of the recording were inconsistent rather than consistent with her testimony. For these reasons, Carradine contends that the trial court erred by admitting into evidence the recording of the forensic interview.
Appellate courts review a trial court's ruling regarding the admission or exclusion of evidence for an abuse of discretion. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). However, even if the trial court abused its discretion by admitting the recording, we would be unable to sustain Carradine's first two issues on appeal. When a reviewing court determines that a trial court abused its discretion by admitting evidence, that does not end the inquiry; instead, the reviewing court must then determine whether the defendant was harmed by the erroneous admission. See Tex. R. App. P. 44.2. Because the erroneous admission of evidence is not constitutional error, see Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007); see also Edwards, 107 S.W.3d at 111 (determining that erroneous admission of recording of child complainant was nonconstitutional error), the error must be disregarded unless it affected substantial rights, Tex.R.App.P. 44.2(b). A defendant's substantial rights are affected "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In determining whether a defendant's substantial rights were affected, the reviewing "court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). "The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments and even voir dire, if applicable," and the court may also consider "whether the State emphasized the error." Motilla, 78 S.W.3d at 355-56. If the reviewing court, "after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect," then the defendant's substantial rights were not affected. Id. at 355 (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
Moreover, "[i]t is well settled that the erroneous admission of testimony is not cause for reversal 'if the same fact is proven by other testimony not objected to.'" Smith v. State, 499 S.W.3d 1, 6 (Tex. Crim. App. 2016) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)). In other words, error in the improper admission of evidence is harmless if the same or similar evidence is admitted at another point in the trial. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010). This is true regardless of whether the other testimony "was received . . . before or after the complained-of-ruling." Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday, 983 S.W.2d at 718).
In his reply brief, Carradine recognizes that the admission of similar evidence may render the improper admission of evidence harmless, but he argues that that doctrine should not be applied in this case. Specifically, he notes that courts have characterized the doctrine as standing for the proposition that "[i]nadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove." Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (emphasis added). Further, he highlights that this Court has explained that this doctrine is based on the concept of waiver, stating that "[t]he premise is that because the defendant failed to object to the inadmissible evidence at some point, he waived the right to complain about its admission elsewhere." Sandoval v. State, 409 S.W.3d 259, 289 (Tex. App.-Austin 2013, no pet.).
Building on the preceding, Carradine contends that the similar evidence that came in was presented through the testimony of B.T. and the SANE and that there was no basis for objecting to either of their testimonies because their testimonies were admissible. See Tex. R. Evid. 803(4) (explaining that medical diagnosis or treatment is exception to hearsay); Fahrni v. State, 473 S.W.3d 486, 496-99 (Tex. App.-Texarkana 2015, pet. ref'd) (determining that SANE's testimony was admissible under Rule 803(4)). For that reason, he urges that the doctrine does not compel a conclusion that he was not harmed in this case by the admission of unobjected-to similar evidence because that similar evidence was admissible.
Although we did determine in Sandoval that the prior admission of hearsay evidence was not harmless in that case even though the complainant later testified about the sexual assault, this Court did not conclude that the admission of evidence through unobjectionable sources could never render harmless the admission of similar evidence through an improper source and did not address the situation present here; instead, in Sandoval, we focused our analysis on the facts and circumstances of that case. See 409 S.W.3d at 289-90 (noting that "we do not believe this case presents" situation in which error was rendered harmless by admission of same evidence elsewhere).
Moreover, when considering the doctrine, one of our sister courts of appeals has more recently explained the doctrine as follows: "[t]he erroneous admission of evidence becomes harmless error if other evidence proving the same fact is properly admitted elsewhere, or the evidence comes in elsewhere without objection." Prince v. State, 574 S.W.3d 561, 574 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd). In other words, the doctrine applies when similar evidence is admitted through a proper source or when similar evidence is admitted through an improper source without objection. Id.; see Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) ("[A]ny error in admitting the evidence was harmless in light of other properly admitted evidence proving the same fact"); Mick v. State, 256 S.W.3d 828, 832 (Tex. App.-Texarkana 2008, no pet.) (holding that because video recording of interview of child complainant was cumulative of child's properly admitted trial testimony and discussed same subject, any error in admission of video recording did not affect defendant's substantial rights and was harmless).
Consistent with that explanation of the doctrine, our sister courts have concluded when confronted with similar situations in which a recording of a forensic interview was admitted and in which testimony regarding the assault came from the complainant or the complainant and other proper witnesses such as a SANE or an outcry witness, that the admission of the recording was harmless based on the doctrine described above. Lumsden v. State, 564 S.W.3d 858, 891-92 (Tex. App.-Fort Worth 2018, pet. ref'd) (determining that admission was harmless where child's description on recording "largely resembled her in-court testimony and her descriptions as testified to by" child's mother and SANE); Matz v. State, 21 S.W.3d 911, 912-13 (Tex. App.-Fort Worth 2000, pet. ref'd) (finding admission harmless where recording repeated testimony of complainant); see also Prince, 574 S.W.3d at 574-75 (determining that admission of recording was harmless, in part, because complainant's testimony was same as her statements on recording and was consistent with statements in complainant's medical records and because witness corroborated portions of complainant's testimony).
Turning to the facts of this case, with respect to the counts alleging penetration of B.T.'s vagina (count 1) and anus (count 2), the admission of the recording did not harm Carradine because the jury found him not guilty of those two offenses. Cf. Jones v. State, 229 S.W.3d 489, 495 (Tex. App.-Texarkana 2007, no pet.) (explaining that because defendant was acquitted of indecency with child, "no harm occurred to him as a result of any improper instructions in the accusation for indecency with a child"); Palmer v. State, Nos. 01-08-00141-CR, 01-08-00280- 00282-CR, 2010 WL 1729338, at *14 (Tex. App.-Houston [1st Dist.] Apr. 29, 2010, no pet.) (mem. op., not designated for publication) (explaining that because excluded evidence pertained to charge for which he was acquitted, defendant "was not harmed by the exclusion of this evidence").
Regarding the count pertaining to the penetration of B.T.'s mouth (count 3), evidence similar to portions of the recording pertaining to count 3 had already been admitted into evidence before the recording was played. See Valle v. State, 109 S.W.3d 500, 509-10 (Tex. Crim. App. 2003); see also Anderson, 717 S.W.2d at 628 (determining that admission of inadmissible evidence was rendered harmless by admission of other evidence proving same fact inadmissible evidence sought to prove); Matz, 21 S.W.3d at 912-13 (explaining that admission of recording of child complainant was harmless where complainant provided similar testimony on same issue).
Specifically, the SANE testified that B.T. described Carradine's "slingy" touching her mouth, discussed "snot" coming out of his "slingy," mentioned that the "snot" tasted "nasty" when Carradine put it in her mouth, and stated that Carradine touched her on the inside of her mouth. Similarly, the report by the SANE admitted into evidence documented the information B.T. gave during the examination, and the information in the report was substantially the same as testified to by the SANE. Further, B.T. also testified about count 3 before the recording was admitted. Although B.T. initially stated that Carradine did not touch any parts of her body other than her private parts, she later clarified that Carradine's private part touched her mouth, that Carradine placed his private part in her mouth, that stuff came out of his private part that tasted bad, and that Carradine touched her mouth in this manner more than once.
Under the doctrine set out above, the admission of this similar evidence would end the inquiry. See Land v. State, 291 S.W.3d 23, 28 (Tex. App.-Texarkana 2009, pet. ref'd) ("In situations where a video recording is improperly admitted, yet the recording is cumulative of the victim's properly admitted live testimony on the same issue, courts often disregard the error, reasoning that it could not have affected the appellant's substantial rights"). However, even under a more expansive harm analysis considering more than the evidence admitted for the jury's consideration summarized above, we would still conclude that the error was harmless.
When asserting that the record shows that he was harmed by the trial court's ruling, Carradine contends that the harm was evidenced by questions the jury asked in its deliberations during the guilt-innocence portion of the trial. Specifically, Carradine notes that the jury sent the following two notes making inquiries of the trial court:
Unanimous on Count III, hung on Counts I and II. Where do we go from here?
Can we get the portion of the CAC with the part with the dolls . . . [w]hen BT was demonstrating vaginal penetration and penetration using dolls?In response to the second question, the trial court directed the jury to the courtroom and played a three-minute portion of the forensic interview in which B.T. used the dolls to repeatedly show how Carradine inserted his penis into her vagina and showed one time how Carradine inserted his penis into her mouth. After the jury rewatched this portion of the interview, they returned to their deliberations and then sent the following note:
If the jury doesn't agree on one of the counts, then what happens with that count?
After referencing the notes from the jury, Carradine contends that although the first jury note said it was unanimous as to count III (penetration of B.T.'s mouth), it did not specify whether the jury was unanimous to convict or acquit. Further, Carradine emphasizes that the jury did not reach a verdict until after viewing the portion of the interview described above and urges that the video harmed him because it "certainly appears to have had a substantial effect on the verdict."
We disagree with Carradine's characterization of the meaning of the jury's notes. At trial, B.T. did initially testify that Carradine did not touch any part of her body and later provided contradictory evidence regarding whether Carradine penetrated her vagina and anus, but she consistently testified that Carradine touched and penetrated her mouth, including describing Carradine ejaculating in her mouth and describing how the discharge tasted. Further, B.T. testified that Carradine performed that act more than once and more than the other alleged acts. That testimony was consistent with the SANE's testimony and her report of the forensic exam pertaining to oral penetration. Accordingly, the strongest evidence of guilt admitted before the forensic interview pertained to the count alleging penetration of B.T.'s mouth (count 3). Moreover, B.T.'s statements on the recording pertaining to count 3 were consistent with and cumulative of her testimony.
Given the nature of the evidence pertaining to count 3, we cannot agree that the portion of the note stating that the jury was unanimous to count 3 but hung on the other two counts could be read as anything other than a statement that the jury had determined that Carradine was guilty of count 3. Cf. Lumsden, 564 S.W.3d at 891 (noting that complainant's testimony provided "the same story" as recording and reasoning that it was "unlikely that the jury was inclined to reject Allison's story of sexual abuse but changed its mind after hearing it again in the recording"). That determination is consistent with the jury's having specifically asked to view and viewing the portion of the forensic interview in which B.T. discussed vaginal penetration. In the short portion of the recording replayed, B.T. repeatedly described and enacted vaginal penetration but only referred to oral penetration once.
In addition to the evidence concerning oral penetration, evidence established that Carradine attempted to escape from police custody after his arrest in this case. See Williams v. State, 440 S.W.3d 717, 720 (Tex. App.-Amarillo 2013, pet. ref'd) ("Effort to escape evinces a consciousness of guilt, which in turn is evidence of culpability"). Further, the jury charge does not refer to the recording. Moreover, although the State mentioned the forensic interview in its closing argument, it primarily relied on the other testimony and evidence presented, including B.T.'s testimony, the SANE's testimony, and the SANE's report. Additionally, when discussing the recording, the State discussed the three different types of penetration alleged and did not focus only on oral penetration. In his closing argument, Carradine primarily argued that the police did not perform a thorough investigation in this case. When he discussed the interview, he emphasized that B.T.'s testimony under oath was inconsistent with the statements made during the interview regarding whether Carradine penetrated her.
In light of the preceding, we must conclude that any error stemming from the trial court's decision to admit "the video of the forensic interview did not have a substantial or injurious effect on the jury's verdict and did not affect [Carradine]'s substantial rights." See Lumsden, 564 S.W.3d at 892. Accordingly, we hold that any error would be harmless and, therefore, overrule Carradine's first two issues on appeal. See Tex. R. App. P. 44.2(b).
$10,000 Fine
In his final issue on appeal, Carradine asserts that the trial court erred by imposing the $10,000 fine. Although Carradine notes that the jury assessed the fine, he asserts that the trial court did not make any inquiry regarding his ability to pay the fine before imposing it. Further, Carradine contends that the record in this case establishes that he did not have the resources to pay the fine because he was appointed counsel at trial and on appeal and that he was homeless when he was arrested. For these reasons, Carradine urges this Court to remand the case to allow the trial court to make an on-the-record inquiry into his ability to pay.
As support for this claim, Carradine refers to article 42.15 of the Code of Criminal Procedure, which provides in relevant part as follows:
(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 as provided by Article 27.13, 27.14(a), or 27.16(a), 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. . . .Tex. Code Crim. Proc. art. 42.15(a-1); see id. art. 27.16 (governing not-guilty pleas).
Further, Carradine points to a recent opinion by one of our sister courts of appeals. In Cruz v. State, the court explained that unlike previous versions of the statute, the current version of article 42.15 requires "that ability-to-pay inquiries be conducted on the record." S.W.3d, No. 14-21-00454-CR, 2023 WL 3236888, at *2 (Tex. App.-Houston [14th Dist.] May 4, 2023, pet. granted). Although our sister court eventually concluded that the most recent version of article 42.15 did not apply in that case because the trial was held before the effective date of the amendments, id. at *5, the court made two other determinations as well. First, the court concluded "that a defendant's right to an ability-to-pay inquiry is 'fundamental to the proper functioning of our adjudicatory system,'" meaning that a defendant is "not required to preserve this [type of] complaint for appeal through objection." Id. at *4 (quoting Proenza v. State, 541 S.W.3d 786, 799 (Tex. Crim. App. 2017)). Next, the court reasoned that in cases like this one where the judgment recites that an inquiry regarding a defendant's ability to pay was conducted, courts can no longer rely on the presumption of regularity created by recitals in a judgment because the amendment to article 42.15 "now requires that an ability-to-pay inquiry be held on the record." Id. at *2-3.
Even if our sister court is correct that a defendant like Carradine does not have to object to preserve an ability-to-pay claim under article 42.15 and that appellate courts may no longer rely on the presumption of regularity pertaining to recitals regarding the ability to pay in trial court judgments, we would still be unable to sustain Carradine's final issue on appeal. We review a trial court's directive requiring the payment of a fine for an abuse of discretion. Sloan v. State, 676 S.W.3d 240, 241 (Tex. App.-Tyler 2023, no pet). Although article 42.15(a-1) does require that an inquiry be made on the record, other portions of that subarticle provide as follows: "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," among other options, "required to be paid at some later date or in a specified portion at designated intervals . . . ." Tex. Code Crim. Proc. art. 42.15(a-1).
When construing the effect of this additional language in a case like the one here where no ability-to-pay inquiry was performed on the record, one of our other sister courts of appeals determined as follows:
[B]ecause the trial court ordered (consistent with Article 42.15(a-1)(1)) that Appellant's payment of his fine and court costs was not required to be made until he is released from confinement, it is apparent from the record that, despite its failure to conduct an on-record inquiry about Appellant's ability immediately to pay
his fine and court costs, it must have determined that Appellant did not have sufficient resources or income immediately to pay all or part of the fine and costs. . . . And because Appellant has not argued that the trial court's determination that he should pay the fine and court costs at some later date, as opposed to the other options available to it under Article 42.15(a-1)(1), amounted to an abuse of discretion, we hold that remanding the cause for a gratuitous inquiry when the resultant determination already is apparent from the record would amount to an unnecessary exercise and a waste of judicial resources.Sloan, 676 S.W.3d at 242. As support for this conclusion, our sister court highlighted that the Rules of Appellate Procedure allow for remanding when a "trial court's erroneous action, failure, or refusal to act prevents the proper presentation of the case to this court and the trial court can correct its action or failure to act," id. at 241 (citing Tex.R.App.P. 44.4(a)), but explained that the defendant's claim regarding the lack of an inquiry on the record did not assert "that the trial court's failure strictly to comply with the statute prevented him from raising and developing a claim on appeal," id. at 242. Moreover, our sister court reasoned that "the result of such an inquiry, had it occurred, already is apparent from the record." Id.
We agree with the analysis from Sloan. As discussed by Carradine, the record in this case shows that the trial court determined that he was entitled to the appointment of counsel at trial and on appeal. Moreover, as set out above, the trial court's judgment did not require Carradine to immediately pay the fine; instead, the trial court ordered an alternative payment directive authorized under subarticle 42.15(a-1) when a defendant does not have the "resources or income to immediately pay" by instructing Carradine "[u]pon release from confinement, . . . to proceed without unnecessary delay to the District Clerk's office, or any other office designated by the Court or the Court's designee, to pay or to make arrangements to pay any fines . . . due." See Tex. Code Crim. Proc. art. 42.15(a-1)(1); Stanberry v. State, No. 07-23-00194-CR, 2024 WL 538835, at *3 (Tex. App.-Amarillo Feb. 9, 2024, pet. filed) (mem. op., not designated for publication). Moreover, Carradine's issue on appeal challenges the lack of an inquiry on the record and does not assert that the trial court erred by employing the statutory remedy under subarticle 42.15(a-1)(1) for when a defendant cannot immediately pay instead of one of the other three available options. Tex. Code Crim. Proc. art. 42.15(a-1)(1)-(4). If Carradine is unable to pay court costs upon his release, he may seek relief from the trial court at that time. See id. 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."). Should the trial court determine that undue hardship exists, the court will consider whether the costs should be satisfied through a different method. See id. art. 43.035(c).
Having reviewed the record, we believe that remanding the case for an ability-to-pay inquiry is not warranted in this case even though one does not appear to have been done on the record because the result of that inquiry is apparent from the record and would result in an unnecessary waste of judicial resources. Moreover, given that the trial court's payment requirement is one of the options available when a defendant does not have the resources to immediately pay, we would be unable to conclude that the trial court abused its discretion in this case. See Sloan, 676 S.W.3d at 242; see also Mayo v. State, 690 S.W.3d 103, 106 (Tex. App.- Amarillo 2024, pet. filed) (overruling issue asserting lack of ability-to-pay inquiry where record showed that trial court determined that defendant did not have sufficient resources and deferred payment obligation to when he was released); Palanco v. State, 690S.W.3d 421, 434-35 (Tex. App.-Eastland 2024, no pet.) (determining that remand for ability-to-pay inquiry was not warranted where result of inquiry was apparent from record because trial court delayed payment until after defendant was released in manner consistent with provision of subarticle 42.15(a-1) pertaining to defendants who are unable to immediately pay).
Therefore, we overrule Carradine's final issue on appeal.
CONCLUSION
Having overruled all Carradine's issues on appeal, we affirm the trial court's judgment of conviction.
Affirmed