IN THE TENTH COURT OF APPEALS No. 10-22-00366-CR TODD ALLEN GUEDEA, Appellant v. THE STATE OF TEXAS, Appellee

From the 413th District Court Johnson County, Texas Trial Court No. DC-F202200302

DISSENTING OPINION Guedea’s second issue in this appeal is: “The Court Erred In Assessing Costs To Indigent Appellant Without Conducting A Hearing.” The argument is based in part upon article 42.15(a-1) of the Code of Criminal Procedure. The State concedes the issue, concluding its discussion with, “Appellant’s Issue Number Two should be granted and the order for legal-fees, court costs, and fine reimbursement be deleted from the judgment.” The trial court did not conduct the required hearing.

The Court’s opinion fails to address the issue as presented by Guedea. The Court only addresses some of the amounts for individual costs. Guedea’s issue is about the failure to hold the statutorily required hearing, not individual costs. If Guedea’s issue has merit, it impacts all of the charges and is not limited to the ones the Court selected to address in its opinion. 1 I dissent.

TOM GRAY Chief Justice Dissenting opinion delivered and filed December 14, 2023

In Carnley, I noted that I had not seen any trial court comply with article 42.15(a-1) but would await the time until the issue was properly presented to address the issue. Carnley v. State, No. 10-21-00104-CR, 2023 Tex. App. LEXIS 8896, at *44-45 (Tex. App.—Waco Nov. 30, 2023, no pet. h.) (publish) (Gray, C.J., dissenting). This appears to be the first opinion to issue in an appeal in which the lack of the required hearing on the ability to pay has been properly raised. Unfortunately, because the issue as raised is not addressed, we will have to continue to wait for direction regarding the trial court’s duty to conduct a post- sentencing hearing on the record regarding the defendant’s ability to pay the fines, fees, and court costs that would otherwise be assessed in the judgment and whether some or all of the amount will not be assessed.

Guedea v. State Page 2