Phi Van Do v. the State of Texas

Affirmed and Memorandum Opinion filed December 15, 2022.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-18-00600-CR

                             PHI VAN DO, Appellant

                                          V.
                        THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 10
                           Harris County, Texas
                      Trial Court Cause No. 2130699

                           MEMORANDUM OPINION

      On remand from the court of criminal appeals, we address appellant’s issue
5, the sole remaining issue in this case, in which appellant asserts the trial court did
not consider his ability to pay fines and costs imposed as conditions of community
supervision. See Do v. State, 

 (Tex. App.—Houston [14th Dist.]
2020), rev’d, 

 (Tex. Crim. App. 2021).

      Generally, an objection in the trial court is required to preserve error with
regard to conditions of community supervision; such issues typically cannot be
raised for the first time on appeal.1 See Speth v. State, 

 (Tex.
Crim. App. 1999) (“A defendant who benefits from the contractual privilege of
probation, the granting of which does not involve a systemic right or prohibition,
must complain at trial to conditions he finds objectionable.”); see also Tex. R.
App. P. 33.1(a). Here, appellant did not complain in the trial court about the fines
and costs imposed as conditions of community supervision during punishment.
Instead, both appellant and the trial court signed the terms of community
supervision, which set forth the fines and costs appellant was required to pay in
addition to other conditions. See Donovan v. State, 

 (Tex.
App.—Fort Worth 2014) (signature of appellant and trial court on conditions of
community supervision indicate appellant had opportunity to complain about
conditions), aff’d, No. PD-0474-14, 

 (Tex. Crim. App. July 1,
2015) (not designated for publication).

      In his reply, appellant argues the preservation requirements of Speth do not
apply because he is not seeking reversal of the fines and costs imposed as
conditions of community supervision, but instead only seeks to have the case
remanded to the trial court for an ability-to-pay inquiry. Absent reversal of the
fines, however, it is not clear such a hearing would have any utility. Cf. Hill v.
State, 

 (Tex. Crim. App. 2002) (“The law does not require a
futile act.”). Moreover, such an argument identifies no error in the trial court’s
judgment for this court to reverse.

      Appellant also argues that no preservation of error was required because
Code of Criminal Procedure article 42A.301(a) requires that, “[i]n determining the
conditions [of community supervision], the judge shall consider the extent to

      1
         An exception exists for conditions the trial court had no authority to impose. See
Gutierrez v. State, 

, 175–76 (Tex. Crim. App. 2012).

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which the conditions impact the defendant’s: . . . (2) ability to meet financial
obligations[.]” Tex. Code Crim. Proc. Ann. art. 42A.301(a)(2) (emphasis added);
see generally Marin v. State, 

 (Tex. Crim. App. 1993). The court
of criminal appeals, however, has explained that a defendant must provide
evidence of an inability to pay fines imposed as conditions of community
supervision in order to trigger the requirement that the trial court “consider” the
defendant’s ability to pay: “Before a trial or appellate court can ‘consider’ a
defendant’s ability to pay proposed payments, the defendant must provide evidence
to support any claim that he is unable to make such payments without undue
hardship.” Mathis v. State, 

 (Tex. Crim. App. 2014). No such
evidence was offered or admitted in this case, nor was any argument made to the
trial court indicating that appellant did not have the ability to pay the fines in
question. We conclude that, under Mathis, article 42A.301(a) does not remove the
preservation requirement typically associated with challenges to conditions of
community supervision.

      Finally, appellant also notes that Code of Criminal Procedure article
42.15(a-1) imposes a duty on the trial court to conduct an ability-to-pay inquiry.
See Tex. Code Crim. Proc. Ann. art. 42.15(a-1). Specifically, article 42.15(a-1)
provides that, “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.” 

 By its terms, article 42.15(a-1) concerns fines and
costs imposed as part of the sentence. But fines and costs imposed as conditions of
community supervision are not part of the sentence: “The Code of Criminal
Procedure defines community supervision as involving a suspension of the
sentence. In other words, community supervision is an arrangement in lieu of the


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sentence, not as part of the sentence.” Speth, 

 (footnote omitted);
see Tex. Code Crim. Proc. Ann. art. 42A.053(a)(1). Because appellant’s issue 5
challenges only fines and costs imposed as conditions of community supervision,
article 42.15(a-1) does not apply to our analysis.

      We overrule issue 5 on the grounds that appellant did not preserve error as to
this issue. Having overruled appellant’s sole remaining issue on remand, we affirm
the trial court’s judgment as challenged on appeal.




                                       /s/       Charles A. Spain
                                                 Justice


Panel consists of Chief Justice Christopher and Justices Spain and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).




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