                                    NO. 07-10-0366-CR

                              IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                     MARCH 30, 2011

                           ______________________________


                     DAVID ANASTACIO MARQUEZ, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                         _________________________________

                FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

         NO. A17778-0809; HONORABLE ROBERT W. KINKAID, JR., JUDGE

                          _______________________________

Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.


                                  DISSENTING OPINION


       The majority finds that Appellant's prior plea agreement and plea are evidence of

his financial ability to pay $337.50 of the $637.50 in court-appointed attorney's fees. I

respectfully disagree.


       Contracting to pay a debt and having the actual ability to pay a debt are two

entirely different concepts. Our jurisprudence is replete with examples of people who

contracted to pay a debt but were unable to fulfill that obligation.
       Furthermore, the determination of an ability to pay must be made at the time of

the assessment. The ability to pay at some past or future point in time is no evidence of

Appellant's present ability to pay. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp.

2010). Because I would reform the judgment to find no attorney's fees were properly

assessable, I respectfully dissent.



                                               Patrick A. Pirtle
                                                    Justice


Do not publish.




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