
                              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Do not publish.

