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Troy Eugene WELCH, Appellant v. The STATE of Texas, Appellee
Appellant Troy Eugene Welch appeals his conviction for aggravated assault with a deadly weapon. Welch's appointed counsel has filed a motion to withdraw and an Anders brief in support of the motion asserting that he has diligently reviewed the appellate record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Anders brief also includes what we identify as Category 2 nonreversible errors related to the assessment of mandatory costs that are not subject to procedural default and that may be raised for the first time on appeal. See Cummins v. State, 646 S.W.3d 605, 615-16 (Tex. App.—Waco May 22, 2022, pet. ref'd); see also Allison v. State, 609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order).
Articles 42.15 and 42.16 of the Texas Code of Criminal Procedure require that a judgment order a defendant to pay court costs. See Tex. Code Crim. Proc. Ann. arts. 42.15 (applicable when the punishment is only a fine), 42.16 (applicable when the punishment is something other than a fine). “Only statutorily authorized court costs may be assessed against a criminal defendant, and all costs assessed against a defendant can be separated into two categories: (1) mandatory costs and (2) discretionary costs.” Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014) (footnote omitted). “A mandatory cost is one other than attorney's fees that is a predetermined, legislatively mandated obligation imposed upon conviction.” Id.
The Court of Criminal Appeals further recognized that:
Typically, a defendant will be sentenced in open court, but the written judgment is prepared at a later date. See, e.g., Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002) (“A trial court does not have the statutory authority or discretion to orally pronounce one sentence in front of the defendant, but enter a different sentence in his written judgment, outside the defendant's presence.”). Thus, while some defendants in some cases may have an opportunity to recognize a basis to object to the imposition of court costs in open court if an itemized bill is available to them, most defendants, like Appellant, will not, because their court costs were not imposed in open court, the judgment did not contain a written amount of court costs, or it contained only an aggregate figure—the accuracy of which may not be verifiable at the time of imposition. For these reasons, we hold that Appellant need not have objected at trial to raise a claim challenging the bases of assessed costs on appeal.
Id. at 390-91.
Johnson illuminates the unique nature of court costs in that they are usually imposed after the defendant is sentenced in open court. See id. at 390. Thus, in most instances, any errors in the imposition of court costs are first raised in the appellate court. Trial courts are rarely afforded the opportunity to correct any errors regarding the imposition of court costs. See Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (noting the general proposition that a timely objection allows the trial court an opportunity to prevent or correct errors and that this requirement, among other things, promotes the orderly and effective presentation of the case to the trier of fact).
Texas Rule of Appellate Procedure 44.4(a) provides that an appellate court must not affirm or reverse a judgment or dismiss an appeal if: (1) “the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals”; and (2) “the trial court can correct its action or failure to act.” Tex. R. App. P. 44.4(a). The Court of Criminal Appeals has stated that Rule 44.4 is implicated when “ ‘a trial court's error prevents the proper presentation of the case to the appellate court and that error can be remedied (without requiring an entire new trial or new punishment hearing) ․’ ” Fakeye v. State, 227 S.W.3d 714, 717 (Tex. Crim. App. 2007) (quoting LaPointe v. State, 225 S.W.3d 513, 521 (Tex. Crim. App. 2007)).
A trial court is required to order appellant to pay mandatory court costs, which are those that are predetermined and legislatively mandated. In this case, the alleged errors in the assessment of court costs prevents the proper presentation of the case to this Court. That presentation may be remedied by the trial court without requiring a new trial or new punishment hearing.1 We abate this appeal to the trial court to review, and if necessary, correct only the assessed mandatory court costs.2 See Johnson, 423 S.W.3d at 389-91; Henery v. State, 364 S.W.3d 915, 918 (Tex. Crim. App. 2012) (“Due to the mandatory language of Rule 44.4, if the preconditions are satisfied, the court of appeals must abate the case, even if neither the State nor the defendant has requested the abatement.”); Fakeye, 227 S.W.3d at 717; LaPointe, 225 S.W.3d at 521; Green v. State, 906 S.W.2d 937, 940 (Tex. Crim. App. 1995) (noting that an appellate court may abate an appeal and instruct the trial court to make findings that comply with a particular statutory requirement); see also Sanchez v. State, Nos. 05-16-01020-CR, 05-16-01021-CR, 05-16-01022-CR, & 05-16-01023-CR, 2017 WL 3276008, at *2, 2017 Tex. App. LEXIS 7149, at *4 (Tex. App.—Dallas July 31, 2017, no pet.) (mem. op., not designated for publication) (abating the case and directing the trial court to sign a corrected judgment of conviction that contained all the statutorily-mandated information); Felder v. State, Nos. 03-13-00706-CR & 03-13-00707-CR, 2014 WL 3560426, at *1, 2014 Tex. App. LEXIS 7821 at *1 (Tex. App.—Austin July 18, 2014 Oct. 8, 2014, no pet.) (per curiam) (mem. op., not designated for publication) (abating appeals and remanding cases to the trial court where the wrong judgment forms were used and directing the trial court to signed corrected judgments of conviction that contain all the statutorily-mandated information); Letulle v. State, No. 09-07-00554-CR, 2009 WL 3199706, at *2, 2009 Tex. App. LEXIS 7854, at *5 (Tex. App.—Beaumont Oct. 7, 2009, no pet.) (mem. op., not designated for publication) (concluding that the facts in the record were insufficient to allow us to modify the trial court's court costs and abating the appeal to the trial court to determine the proper amounts to be assessed).
The trial court shall conduct a hearing on appellant's court-cost challenges within thirty days of this order. The District Clerk and Court Reporter shall file a Supplemental Clerk's Record and Supplemental Reporter's Record, respectively, with this Court, within fourteen days of the date the trial court conducts the hearing on appellant's court-cost challenges.
DISSENT TO ABATEMENT ORDER
In a number of pending appeals, the appellant has fully briefed an issue regarding court cost. In most, but not all of those appeals, the State has filed a brief in response. The cost issue is thus ready, or soon will be ready, for the Court to decide. But rather than decide the issue, the Court has decided to abate the appeal to the trial court for its review of the issue. Welch v. State, ––– S.W.3d ––––, No. 10-21-00284-CR, ––– Tex. App. LEXIS –––– (Tex. App.—Waco Oct. 12, 2022, ord.) (publish).
In this case, these cost issues do not need further development in the trial court. The assessment of cost in the judgment is either correct, or it is not.1 There is no “ ‘trial court's error [that] prevents the proper presentation of the case to the appellate court․’ ” Fakeye v. State, 227 S.W.3d 714, 717 (Tex. Crim. App. 2007) (quoting Tex. R. App. P. 44.4). Thus, the preconditions of Rule 44.4 are not met. Tex. R. App. P. 44.4; see Henery v. State, 364 S.W.3d 915, 918 (Tex. Crim. App. 2012).
Moreover, the scope of the abatement procedure is unclear, and the order provides no guidance to the trial court or parties. The Court apparently has not determined that there is an error in the judgment. Abatement Order at 4 (“․ we abate this appeal to the trial court to review and, if necessary, correct only the assessed mandatory court cost.”) (emphasis added). The Court certainly gives no indication of the error, if any, that is present in the judgment to be addressed by the trial court at the abatement hearing. And because the error is not identified, the Court is thus unable to comply with the requirement in the rule which instructs the Court to “․ direct the trial court to correct the error.” Tex. R. App. P. 44.4(b) (emphasis added). This leads me to conclude that any allegation of error in the assessment of mandatory court cost will be subjected to this unprecedented procedure, or at the very least, only the Court will be able to determine those issues “where court cost errors can be accurately determined from the existing record.” Abatement Order at 4, fn 2.
Additionally, I see no reason for a distinction for limiting this procedure to the issue of alleged error in mandatory cost. If the procedure is valid at all, it would be valid to any issue that did not require preservation.2
Finally, this procedure will require additional briefing by the parties, or at least the opportunity for additional briefing, if the trial court signs an amended or corrected judgment. Indeed, the signing of an amended or corrected judgment raises the issue of whether the appellate timetable is reset and begins to run anew, requiring a new notice of appeal, see Mendoza v. State, 935 S.W.2d 501, 503-04 (Tex. App.—Waco 1996, pet. ref'd) (motion for new trial hearing); see also Miller v. State, 343 S.W.3d 499, 504 (Tex. App.—Waco 2011, no pet.) (restitution hearing), or will the Court allow supplemental briefing only on the portions of the judgment that were modified, similar to an appeal after a nunc pro tunc modification to a judgment where the appellate issues are limited to the modifications in the nunc pro tunc judgment.3 See e.g., Cunningham v. State, 643, 167 Tex.Crim. 641, 322 S.W.2d 538, 540 (1959). And if there are new or different allegations of error as a result of this process, does the whole abatement ritual start over? If so, how many cycles do we have to endure?
In conclusion, I have found no legal or jurisprudential basis to justify the imposition on the trial court, the clerk, the reporter, or the parties, a procedure that is unnecessary to our ability to decide the issues as briefed by the appellant. The scope, but also the limitations, placed on this procedure will further complicate an already unduly complicated system of assessing, reviewing, and collecting court cost in criminal proceedings. And while it is not limited to Allison briefs 4 such as this one, to a rather large extent, this new abatement procedure upends this Court's very recent work resulting in the announcement of a comprehensive procedure for the development of appeals that present no reversible issue but otherwise present arguable issues of nonreversible error such as court cost. See generally, Cummins v. State, 646 S.W.3d 605, 615 (Tex. App.—Waco 2022, pet. ref'd).
I also note that this procedure is adopted after tens, if not hundreds, of similar cases have been decided by this Court and hundreds, if not thousands, across the State, all without finding a need to abate the proceeding to decide the appeal. Moreover, the Texas Legislature recently revisited this area, and while it attempted to clarify and make more uniform the amounts and methods of assessing court cost, it did not find a need to modify the process of appellate review of the assessments. See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. Ch. 1352.
For the reasons expressed, I do not, and cannot, join this abatement order.
1. We further note that some of the issues involving court costs may be remedied by the filing of a judgment nunc pro tunc in the trial court. See Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980) (noting that a judgment nunc pro tunc is the appropriate avenue to make a correction when the court's records do not mirror the judgment that was actually rendered); see also Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988) (“A nunc pro tunc may correct clerical errors in a judgment, but not judicial omissions. A clerical error is one which does not result from judicial reasoning or determination.” (citations omitted)).
2. The abatement procedure ordered in this case should not be viewed as requiring abatement in cases involving court costs where errors can be accurately determined from the existing record.
1. The appellant has the burden to show a trial court error that affects the judgment. If the appellant is unable to do so, the issue should be overruled.
2. Does the appellant waive any error that was otherwise not subject to procedural default if an objection is not now made during the abatement hearing since there is now an opportunity to object? Is the trial court limited to review of only the issues regarding mandatory cost raised in the appellant's brief on appeal, and if so, why? Why not empower the trial court to fix any issue that is raised during the hearing, especially since presumably the appellant is going to have to be bench warranted for the hearing?
3. It is unlikely that any change to cost can be made by a judgment nunc pro tunc because it will seldom be the case that the record will support a determination that the trial court rendered judgment regarding cost other than what appears in the judgment as a result of a clerical error.
4. Allison briefs are discussed in Cummins v. State, 646 S.W.3d 605, 615 (Tex. App.—Waco 2022, pet. ref'd).
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Docket No: No. 10-21-00284-CR
Decided: October 12, 2022
Court: Court of Appeals of Texas, Waco.
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