Summary
noting that Category 2 nonreversible error is error that is unpreserved but not subject to procedural default
Summary of this case from Swinner v. StateOpinion
No. 10-21-00303-CR
05-11-2022
Christopher B. CUMMINS, Appellant v. The STATE of Texas, Appellee
Christopher B. Cummins, Pro Se. John M. Hurley, Attorney at Law, Waco, for Appellant. Barry N. Johnson, McLennan County District Attorney, Waco, for Appellee.
Christopher B. Cummins, Pro Se.
John M. Hurley, Attorney at Law, Waco, for Appellant.
Barry N. Johnson, McLennan County District Attorney, Waco, for Appellee.
Before Chief Justice Gray, Justice Johnson, and Justice Smith
STEVE SMITH, Justice
It has been more than twenty years since this Court last addressed its Anders procedures. See Sowels v. State , 45 S.W.3d 690, 692-94 (Tex. App.—Waco 2001, no pet.), overruled in part on other grounds by Meza v. State , 206 S.W.3d 684, 689 (Tex. Crim. App. 2006). Since our last comprehensive discussion of this Court's Anders procedures, there have been significant changes made to the scope of our review and the duties of the parties in Anders cases. In this opinion, we document the history of this Court's Anders procedures up to and including our order in Allison v. State to provide guidance to the bench and bar about changes to our Anders procedures, especially regarding treatment of nonreversible error raised in what is otherwise an Anders brief and the duties of the Court and the parties when nonreversible error is raised. See generally Allison v. State , 609 S.W.3d 624 (Tex. App.—Waco 2020, order).
Basic Anders Procedures
The basic Anders procedures are well known; however, they warrant repeating to help explain the changes to our Anders procedures. In Anders v. California , the United States Supreme Court emphasized that appointed counsel has a duty to zealously represent the interests of his client on appeal. See Anders v. California , 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). However, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." Id. at 744, 87 S. Ct. at 1400. In advising the court of the frivolity of the appeal, counsel must file a "brief referring to anything in the record that might arguably support the appeal" with his request to withdraw. Id. at 744, 87 S. Ct. at 1400. The Court of Criminal Appeals has explained that: "An Anders brief may not be filed without a motion to withdraw, as the sole purpose of an Anders brief is to explain and support the motion to withdraw." In re Schulman , 252 S.W.3d 403, 404 (Tex. Crim. App. 2008). With this brief exposition in mind, we endeavor to explain the evolution of our Anders procedures.
Briefing Required for Each Judgment
In our initial analysis of any brief filed by appointed counsel in a criminal appeal, we look to see if counsel has addressed each judgment. We have received briefs that only address one judgment in a multi-judgment case. In Kirven v. State and subsequently in Loredo v. State , we began requiring counsel to either file a merits brief or a motion to withdraw and an accompanying Anders brief addressing each judgment. See, e.g., Loredo v. State , No. 10-15-00322-CR, 2016 Tex. App. LEXIS 13936 at **1-2 (Tex. App.—Waco Apr. 21, 2016, order) (per curiam) (not designated for publication) ; Kirven v. State , No. 10-14-00122-CR, 2015 Tex. App. LEXIS 13151 at **1-3 (Tex. App.—Waco Oct. 22, 2015, order) (per curiam) (not designated for publication). The obvious concern was that defendants were being deprived of meaningful appellate review of each judgment for which counsel had been appointed to represent them. Therefore, pursuant to Kirven and Loredo , each judgment of conviction must be addressed in a brief—either in an Anders or a merits brief. See, e.g., Loredo , 2016 Tex. App. LEXIS 13936, at **1-2; Kirven , 2015 Tex. App. LEXIS 13151, at **1-3.
Enacted in 1974, article 21.24 of the Code of Criminal Procedure provides that a single indictment may charge two or more offenses, each in a separate count, if the offense arises out of the same "criminal episode." Tex. Code Crim. Proc. Ann. art. 21.24(a) ; see Waythe v. State , 533 S.W.2d 802, 803 (Tex. Crim. App. 1976). Trial courts frequently sign a separate judgment for each count in a single indictment. Notwithstanding multiple trial court judgments, we docket only one appeal for each trial court docket number, which normally corresponds to a single indictment.
The Collision Course
In 1996, in response to an Anders brief that also requested modification to the judgment to reflect accurately the allegations in the State's motion to revoke that were determined orally to be true, this Court addressed the question of "what amount of relief can a defendant be entitled and still be involved in an ‘ Anders ’ appeal." Evans v. State , 933 S.W.2d 334, 334 (Tex. App.—Waco 1996, no pet.) (per curiam). The Evans Court answered "zero." Id. In other words, the holding in Evans was that "if the defendant is entitled to any relief from the appellate court[,] he is not prosecuting a frivolous appeal. Thus, if there is an arguable basis for requesting any relief, counsel should present that argument to the appellate court in a brief on the merits." Id. at 334-35. The Evans Court stated that "if Evans is entitled to have the judgment reformed to match the court's oral findings, he is entitled to some ‘relief’ from this court." Id. at 335. Accordingly, Evans's appeal was not determined to be frivolous, and the Court abated the matter to the trial court for the appointment of new counsel. Id. at 336. For approximately twenty years, this Court followed Evans .
In recent years, however, we began to receive a growing number of Anders briefs that also requested modifications to the judgment. In response to these briefs, the Ferguson opinion was issued. See generally Ferguson v. State , 435 S.W.3d 291 (Tex. App.—Waco 2014, pet. dism'd). In Ferguson , Justice Scoggins recognized the well-established rule that appellate courts have the authority to reform judgments and affirm the judgment as modified. Id. at 293-94. Justice Scoggins also noted that numerous Texas courts were reforming judgments even when an Anders brief had been filed. Id. at 293-94. Therefore, in the interest of judicial economy, Justice Scoggins concluded that counsel could request a modification of the judgment in an Anders brief, and that the Court had the power to make the requested modification so long as the requested modification involved nonreversible error. Id. at 294-95.
Before going any further, we must explain the distinction between reversible and nonreversible error, as Ferguson is one of the earliest cases in which the Court recognized such a distinction. It was not until we issued our order in Allison v. State that this Court clearly explained the distinction. See generally Allison v. State , 609 S.W.3d 624 (Tex. App.—Waco 2020, order). A reversible issue is one that could result in a reversal or modification, in whole or in part, of the conviction or the punishment imposed. See id. at 626-27. This is otherwise known as reversible error. See id. at 627. We have referred to alleged errors that do not have the potential to result in reversal, in whole or in part, of the conviction or punishment as nonreversible error. See id. at 627-28. Examples of nonreversible issues are those that involve court costs or basic recitations in the judgment. Id. at 626.
Though seductive in its simplicity, the Ferguson opinion suffers from at least two problems. First, by allowing appellate courts to modify a judgment within the Anders context, the State is deprived of an opportunity to respond to what is otherwise argued as error in the trial court's judgment. See Wilson v. State , 955 S.W.2d 693, 697 (Tex. App.—Waco 1997, no pet.) ("Accordingly, the State's right to file a responsive brief will commence upon the filing of a pro se response by an appellant."). In the vast majority of Anders appeals, pro se responses are not filed. Therefore, the State's right to respond is rarely triggered. See id. In other words, the State often is procedurally blocked from responding to the alleged nonreversible error that could result in a modification or reformation of the judgment. This problem is accentuated when, as has happened in later cases, counsel raises constitutional challenges to court costs within what is otherwise an Anders brief and no pro se response has been filed. See, e.g., Bryant v. State , No. 10-18-00352-CR, 2020 WL 103719, 2020 Tex. App. LEXIS 100 (Tex. App.—Waco Jan. 8, 2020) (addressing the constitutionality of the time-payment fee), vacated , No. PD-0092-20, 2021 WL 1936065, 2021 Tex. Crim. App. Unpub. LEXIS 405 (Tex. Crim. App. May 12, 2021) (per curiam) ; Lee v. State , No. 10-18-00334-CR, 2019 WL 7374769, 2019 Tex. App. LEXIS 11279 (Tex. App.—Waco Dec. 31, 2019) (same), vacated , No. PD-0065-20, 2021 WL 1938686, 2021 Tex. Crim. App. Unpub. LEXIS 376 (Tex. Crim. App. May 12, 2021) (per curiam) ; Anderson v. State , No. 10-18-00341-CR, 2019 WL 6936732, 2019 Tex. App. LEXIS 10969 (Tex. App.—Waco Dec. 18, 2019) (same), vacated , No. PD-0063-20, 2021 WL 1940556, 2021 Tex. Crim. App. Unpub. LEXIS 411 (Tex. Crim. App. May 12, 2021) (per curiam).
We recognize that this Court, as well as a number of other courts in the State, have applied Ferguson and modified judgments within the context of Anders . Though we will not cite the cases here, as of the date of issuance of this opinion, Ferguson has been cited more than 150 times, often for the proposition that judgments can be modified within the context of Anders .
Second, and perhaps most importantly, the Ferguson opinion is not a true majority opinion, although it is routinely cited as such. Indeed, a majority of the justices of this Court concluded in Ferguson that the Anders brief filed by counsel requesting modification of the judgment was not a true Anders appeal, but rather a brief on the merits. See Ferguson , 435 S.W.3d at 297-98. After considering counsel's brief as a brief on the merits, the majority in Ferguson agreed that the judgment should be modified and affirmed as modified. Id. at 298.
On the same day this Court issued the Ferguson opinion, we also issued a published abatement order in McElwain v. State , whereby a majority of the justices on this Court abated an Anders appeal for the appointment of new counsel to brief nonreversible error—the assessment of attorney's fees against an indigent defendant. See McElwain v. State , 435 S.W.3d 298, 300 (Tex. App.—Waco 2014, order). The McElwain Court relied heavily on Evans to support abatement of the appeal for the appointment of new counsel. Id.
Based on the reasoning contained herein, we overrule Evans , Ferguson , and McElwain to the extent that they conflict with Price , Allison , and this opinion.
The Evolving Way to Handle Nonreversible Error
After issuing Ferguson and McElwain , we continued to receive Anders briefs that also raised nonreversible error. In Hines v. State , this Court addressed how to treat nonreversible error raised by counsel in what was otherwise an Anders brief. See, e.g., Hines v. State , Nos. 10-13-00286-CR & 10-13-00292-CR, 2014 WL 2466562 at *2, 2014 Tex. App. LEXIS 5768 (Tex. App.—Waco May 29, 2014, pet. ref'd) (mem. op., not designated for publication). In Hines , the briefed nonreversible error involved: (1) incorrect citations in the judgment of conviction pertaining to the defendant's pleas to enhancement paragraphs; (2) the assessment of court-appointed attorney's fees; (3) an incorrect reference to the operative statute for one of the offenses; and (4) an incorrect assessment of costs pertaining to the filing fee. See id. at *4, 2014 Tex. App. LEXIS 5768 at *2. Following the majority in Ferguson , the Hines Court concluded that counsel's Anders brief was really a brief on the merits and subsequently addressed the alleged errors and did not conduct an Anders independent review. Id. at *2, 2014 Tex. App. LEXIS 5768 at *4. Except for the filing fee, all of the briefed nonreversible errors resulted in modifications to the judgment. Id. at **2–3, 2014 Tex. App. LEXIS 5768 at **5-6.
A few months after Hines , this Court addressed another instance of nonreversible error raised by counsel in what was otherwise an Anders brief. See generally Price v. State , No. 10-13-00403-CR, 2014 WL 4749075, 2014 Tex. App. LEXIS 10403 (Tex. App.—Sept. 18, 2014, no pet.) (mem. op., not designated for publication). In Price , counsel filed a motion to withdraw and an accompanying Anders brief, but also argued that the trial court "erred in assessing transport fees against Price because they were for transport pursuant to a bench warrant and that such fees are not part of statutory court costs defendants must pay whether indigent or not." Id. at *1, 2014 Tex. App. LEXIS 10403 at *2. For the first time, the Price Court conducted an Anders independent review of the record while concurrently treating the briefed nonreversible error as a brief on the merits. Id. ("Notwithstanding it is otherwise presented as an Anders brief and, moreover, we have performed the remainder of the normal due process requirements, both substantive and procedural, in Anders cases, we will consider this as a brief on the merits specifically as it relates to the issue of the appeal of erroneously assessed costs in criminal cases."). The Price Court found that the transport fees were erroneously assessed, modified the judgment to delete the transport fees, affirmed the trial court's judgment as modified, and dismissed counsel's motion to withdraw as moot. Id. at *1, 2014 Tex. App. LEXIS 10403 at **2-3.
The import of Price is that when this type of brief is filed—an Anders brief also asserting nonreversible error, which we later refer to as an Allison brief—this Court will conduct an independent review of the record for reversible error involving the defendant's conviction and sentence and then treat the briefed nonreversible error as a merits issue. Because there is a merit-based argument made by appellant, the State is entitled and expected to file a brief responding to the alleged nonreversible error.
Shortly after Price , we started receiving merits briefs in criminal cases that, among other things, raised nonreversible error of minimal significance. See, e.g., Tillison v. State , No. 10-14-00403-CR, 2015 WL 4064676, 2015 Tex. App. LEXIS 6812 (Tex. App.—Waco July 2, 2015, pet. ref'd) (mem. op., not designated for publication). In Tillison , counsel, in six issues, identified errors in the judgment. Id. at **1-2, 2015 Tex. App. LEXIS 6812 at **1-6. As relevant to this discussion, counsel alleged that the judgment did not properly reflect the sections of the Texas Penal Code of which the defendant was found to have been convicted, and that the judgment should be modified to show that it was an assistant district attorney who tried the case, not the elected County or District Attorney. Id. at **1-2, 2015 Tex. App. LEXIS 6812 at **1-3. The Court overruled Tillison's complaints pertaining to the penal code provision and the listing of the assistant district attorney, concluding that these are not error. Id. at **1-2, 2015 Tex. App. LEXIS 6812 at **1-3. Subsequently, in Kerr v. State , counsel filed a brief that did not challenge the defendant's conviction or sentence, but rather complained only about inconsistencies between the judgment and the record. No. 10-15-00113-CR, 2016 WL 6652519, at *1, 2016 Tex. App. LEXIS 12082, at *1 (Tex. App.—Waco Nov. 9, 2016, no pet.) (mem. op., not designated for publication). Specifically, counsel requested that the judgment be modified to reflect: (1) the allegations contained in the State's motion to adjudicate that the trial court found to be true; and (2) a different statute for the offense. Id. at *1, 2016 Tex. App. LEXIS 12082, at **1-2. The Court made the requested modifications and affirmed the trial court's judgment as modified. Id. at *1, 2016 Tex. App. LEXIS 12082, at **1-2.
In the couple of years that followed Price , we received several briefs that challenged the defendant's conviction or sentence and requested modifications to the trial court's judgment that we determined were not error. See, e.g., Russaw v. State , No. 10-17-00044-CR, 2017 WL 3082156 at *1–2, 2017 Tex. App. LEXIS 6758 (Tex. App.—Waco July 19, 2017, no pet.) (mem. op., not designated for publication) (recognizing that an incorrect date regarding when the judgment was entered is a clerical mistake, not an error, but modifying the date the judgment was entered because the parties agreed that the date should be modified); Steinmann v. State , No. 10-16-00137-CR, 2017 WL 2623065, 2017 Tex. App. LEXIS 5559 (Tex. App.—Waco June 14, 2017, no pet.) (mem. op., not designated for publication) ("We have held many times, most recently in March of this year, that statutory penal provisions are not required by the Code of Criminal Procedure to be included in the judgment."); Sabedra v. State , No. 10-16-00033-CR, 2017 WL 1101277 at *3, 2017 Tex. App. LEXIS 2241 (Tex. App.—Waco Mar. 15, 2017, pet. ref'd) (mem. op., not designated for publication) ("The fact that the Health and Safety Code provision cited along with the name of the offense in this particular judgment only refers to the subsection regarding the punishment if the offense is committed within a drug-free zone does not make the judgment in need of correction.").
The following year, we received another brief that requested modifications to the trial court's judgment without addressing the defendant's conviction or sentence. See, e.g., Branch v. State , No. 10-16-00383-CR, 2017 WL 3298800, 2017 Tex. App. LEXIS 7355 (Tex. App.—Waco Aug. 2, 2017, no pet.) (mem. op., not designated for publication). Counsel in Branch alleged that: (1) the evidence was insufficient to support the trial court's decision to order Branch to pay court-appointed attorney's fees; (2) the trial court erred in assessing a $6 jury reimbursement fee when only a $4 jury reimbursement fee is statutorily authorized; and (3) the judgment was erroneous because it listed the terms of a plea bargain when there was no plea bargain. Id. at **1–2, 2017 Tex. App. LEXIS 7355 at **1-4. The Court concluded that Branch procedurally defaulted on his arguments regarding attorney's fees and the jury reimbursement fee by not challenging the trial court's order deferring an adjudication of guilt and placing him on community supervision. Id. at **1–2, 2017 Tex. App. LEXIS 7355 at **3-4. However, with regard to the plea-bargain language in the judgment, the Branch Court concluded that the deficiency appeared to be a clerical mistake and not an error. Id. at **2, 2017 Tex. App. LEXIS 7355 at *4. The judgment was reformed to delete the terms of the plea bargain, and the trial court's judgment was affirmed as modified. Id.
The Allison Order
In 2020, similar to Kerr and Branch , we received another brief from appointed counsel that requested modifications to the judgment without addressing the defendant's conviction or sentence. See Allison , 609 S.W.3d at 626 ; see also Branch , 2017 WL 3298800, at **1–2, 2017 Tex. App. LEXIS 7355, at **1-4 ; Kerr , 2016 WL 6652519, at *1, 2016 Tex. App. LEXIS 12082, at **1-2. Specifically, in Allison v. State , counsel filed a brief on the merits only challenging a fee and asserting that the judgment contained several clerical errors regarding when the sentence was imposed and when the sentence commenced, the notations of the sentencing range for the charged offenses, and the recitation of the entire statute for which Allison was convicted. See 609 S.W.3d at 626.
In its order, the Allison Court began by stating that:
To comply with the Constitutional protections underpinning the United States Supreme Court's decision in Anders v. California , appointed counsel must argue an issue that raises a non-frivolous issue or, pursuant to Anders , file a motion to withdraw and a brief in support of the motion to withdraw. The non-frivolous
issue must be an issue that would impact the judgement [sic] of conviction or the punishment and not merely a non-reversible issue, such as court costs or recitations in the judgment, which can be corrected within the Anders context.
Id. at 625. After explaining that an issue is frivolous if it presents no reversible error and that reversible error is error that could result in a reversal or modification, in whole or in part, of the conviction or punishment imposed, we emphasized that counsel's decision to file a brief that did not present any reversible error, but argued only nonreversible error, prevented the appellate court "from addressing any issue relating to the merits of appellant's conviction and punishment and procedurally blocked appellant's right to appellate review on the merits of his case by foreclosing this Court's ability to reach a meritorious issue, if any exist." Id. at 628. At the very least, the failure to file an Anders brief prevented the Court from conducting its systematic independent review as is critical to the due-process concerns that Anders was designed to address. See id. Moreover, the failure to file an Anders brief in this instance deprived the appellant from the other protections of the regular Anders procedures, including the right to file a pro se response to counsel's motion to withdraw and brief in support of the motion to withdraw.
The Allison Court struck counsel's brief and ordered counsel to file a brief that either raised an issue addressing appellant's convictions or punishments—reversible error—or to file a motion to withdraw and a brief in support of the motion that complied with Anders and its progeny. Id. However, the Allison Court emphasized that counsel should not ignore nonreversible errors. Id. Rather, we noted that nonreversible errors can be raised in an Anders brief. Id. Heretofore, such a brief—what is typically considered a traditional Anders brief coupled with issues alleging nonreversible error—will be referred to as an Allison brief.
The Pro Se and State's Responses
The shift in our treatment of joint Anders /merits briefs (i.e., Allison briefs) does not affect the pro se response and the State's right to respond to the Anders portion of the brief. "Under Anders , an appellant has a right to review the Anders brief that counsel submitted and to respond to it on his own." Bledsoe v. State , 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).
[T]he court of appeals is not required to review the merits of each claim raised in an Anders brief or a pro se response. The court's duty is to determine whether there are any arguable grounds and if there are, to remand to the trial court so that new counsel may be appointed to brief the issues.
Id. Reviewing the merits of the arguments raised in a pro se response would deprive an appellant of meaningful assistance of counsel. See id. ; see also Llamas v. State , No. 13-11-00416-CR, 2012 WL 6720674 at *1, 2012 Tex. App. LEXIS 9501 (Tex. App.—Corpus Christi Nov. 8, 2012, no pet.) (mem. op., not designated for publication). A corollary of this rule is that when an Allison brief is filed, any alleged nonreversible error raised only in a pro se response need not be addressed, as this would violate the prohibition against hybrid representation. See Robinson v. State , 240 S.W.3d 919, 922 (Tex. Crim. App. 2007) (noting that a party represented by counsel is not entitled to hybrid representation); see also Allison , 609 S.W.3d at 627-28 (noting that our Anders review, and by extension our review of an Anders pro se response, is limited to an independent review of the record for reversible error).
The Anders issues are easily overlooked at times. For example, in Getts , the Twelfth Court of Appeals addressed an issue raised in the pro se response and, without abating the case for new counsel to be appointed or notification to the State so they could respond to the issue, reversed the judgment, and remanded it for a new hearing on sentencing. See Getts v. State , 156 S.W.3d 593, 594-96 (Tex. App.—Tyler 2003), aff'd , 155 S.W.3d 153 (Tex. Crim. App. 2005). On review from the State's petition for discretionary review, the Court of Criminal Appeals also addressed the merits of the issue without noting the failure to abate the proceeding for the appointment of new counsel. See Getts , 155 S.W.3d at 154-58.
In the instance where a motion to withdraw and a brief are filed in compliance with Anders asserting that there is no reversible error, but counsel argues that there is nonreversible error (the Allison brief), the State is expected to file a response addressing the merits of the nonreversible error presented in the Allison brief. See, e.g., Price , 2014 WL 4749075, at *1, 2014 Tex. App. LEXIS 10403, at *2 (treating nonreversible error raised in an Anders brief as a merits issue and allowing the State to respond to the merits issue). Furthermore, if a pro se response is filed to any Anders brief or the Anders portion of the Allison brief, the State and appellant's appointed counsel will be notified, and the State will be allowed time to respond to the pro se response. See Sowels , 45 S.W.3d at 694 ; see also Wilson , 955 S.W.2d at 697.
We notify the State and appellant's appointed counsel of the filing of a pro se response because it has been our experience that virtually all pro se responses are not properly served on either the State or appellant's appointed counsel. See Tex. R. App. P. 9.5 ("At or before the time of the document's filing, the filing party must serve a copy on all parties to the proceeding."). Thus, this procedure provides notice of the filing of the pro se response to which the State and the appointed counsel will have access on the Court's online case management system, also known as TAMES.
The Scope of this Court's Review of Nonreversible Error in an Allison Brief
As previously mentioned, under Anders , we review the record for reversible error, which is error that could result in the reversal, in whole or in part, of the conviction or sentence imposed. See Allison , 609 S.W.3d at 626-28. If we find an arguable, reversible issue that was not raised by appointed counsel, then we must abate the case to the trial court for the appointment of new counsel. See Bledsoe , 178 S.W.3d at 827 (citing Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) ).
However, we seek to clarify how we address nonreversible issues raised in what we are now calling an Allison brief and nonreversible errors that are not raised by counsel in any appellate brief. Generally, there are four different types of nonreversible issues that typically come to us:
• Preserved, nonreversible issues that are raised by appointed counsel in an Allison brief (Category 1);
• Unpreserved, nonreversible issues that are not subject to procedural default and are raised by appointed counsel in an Allison brief (Category 2);
• Nonreversible issues that are either preserved or not subject to procedural default and are NOT raised by appointed counsel (Category 3); and
• Nonreversible issues that are unpreserved and which are subject to procedural default and are NOT raised by appointed counsel (Category 4).
The scope of this Court's independent review for each category of nonreversible error is treated differently based on preservation, procedural default, and whether the issue was assigned as error by appointed counsel.
CATEGORY 1
This category is the easiest to explain. As previously mentioned, in an Allison brief, appointed counsel has asserted that there is no reversible error (the traditional Anders brief) but has also alleged that there is nonreversible error that requires judgment modification. In Category 1, appointed counsel has explicitly raised nonreversible error in their brief, and the nonreversible error is preserved. Because the nonreversible error was preserved and raised by counsel in an Allison brief, we first conduct an independent review of the record for reversible error. In this first step, we follow the traditional Anders procedures stated earlier. See Anders , 386 U.S. at 744, 87 S. Ct. at 1400 ; see also In re Schulman , 252 S.W.3d at 404. In the second step, we address the merits of the nonreversible error raised by counsel after the State has been afforded an opportunity to respond to the raised nonreversible error. See, e.g., Price , 2014 WL 4749075, at *1, 2014 Tex. App. LEXIS 10403, at *2. This second step addressing the assigned and preserved nonreversible error is the same merits analysis and procedures we would do in an ordinary appeal. In other words, this procedure mirrors that which was done in Price. See id.
CATEGORY 2
In Category 2, appointed counsel has raised nonreversible error in an Allison brief, but the nonreversible error is unpreserved. Ordinarily, for an issue to be preserved on appeal, there must be a timely objection which specifically states the legal basis for that objection. See TEX. R. APP. P. 33.1 ; see also Rhoades v. State , 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). A party satisfies the requirement of a timely trial-level complaint "if the party makes the complaint as soon as the grounds for it become apparent[.]" Gillenwaters v. State , 205 S.W.3d 534, 537 (Tex. Crim. App. 2006). This means "as soon as the [objecting party] knows or should know that an error has occurred." Hollins v. State , 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). "This rule generally applies to all complaints except those that involve rules that are ‘waivable only’ or ‘systematic’ (or ‘absolute’) requirements." London v. State , 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
However, for some errors, such as court costs, the Court of Criminal Appeals has held appellant cannot be "faulted for failing to object when he or she was simply not given the opportunity to do so." Id. Thus, "an appellant may generally challenge the imposition of even mandatory court costs for the first time on direct appeal when those costs are not imposed in open court and the judgment does not contain an itemization of the imposed court costs." Id. (citing Johnson v. State , 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014) ). This is because "procedural default is premised on both an appellant's knowledge of and failure to challenge an issue.... And enforcing a procedural-default rule against a defendant who had no opportunity to raise an objection in the trial court does not further any of the policies delineated in Gillenwaters . " Id. (citing Riles v. State , 452 S.W.3d 333, 337 (Tex. Crim. App. 2015) ). Therefore, we are authorized to address Category 2 nonreversible errors, such as court costs, that are not subject to procedural default and that are raised by appointed counsel in an Allison brief. And as mentioned earlier, our analysis of these issues will follow the two-step process in Price . See, e.g., Price , 2014 WL 4749075, at *1, 2014 Tex. App. LEXIS 10403, at *2.
Treatment of Nonreversible Error Not Raised in any Brief
Occasionally, during our review of the record and analysis of the raised issues, we identify nonreversible error on our own that was not raised by counsel in a brief. This can occur not only when analyzing an Allison brief, but also in the course of analyzing a typical Anders or a typical merits brief in a criminal appeal. This situation encompasses both Category 3 and Category 4 nonreversible error, as defined above.
CATEGORY 3
In Category 3, there is preserved, nonreversible error that is not raised by appointed counsel. For this category of nonreversible error, we note that the Court of Criminal Appeals has stated that "appellate courts are free to review ‘unassigned error’—a claim that was preserved in the trial court below but was not raised on appeal." Sanchez v. State , 209 S.W.3d 117, 121 (Tex. Crim. App. 2006) ; see Pena v. State , 191 S.W.3d 133, 136 (Tex. Crim. App. 2006). Thus, for unassigned, nonreversible error that has been preserved at trial or that is not subject to procedural default, we may, but are not required to , fix the error, order appointed counsel to brief the issue, or we may ignore it.
In Pena v. State , the Court of Criminal Appeals noted that "many, if not most, of the types of error that would prompt sua sponte appellate attention need not be assigned because the error involved constitutes an obvious violation of established rules." 191 S.W.3d at 136 (emphasis in original). Thus, pursuant to Pena , we may identify, review, and fix a large number of unassigned errors that are preserved or are not subject to procedural default. See id. ; see also Bigley v. State , 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) ("Nothing in the text of Rule 80 [now Texas Rule of Appellate Procedure 43.2 ], however, so limits the power of the court of appeals to reform judgment of the court below. Therefore, we refuse to limit the authority of the courts of appeals to reform judgments to only those situations involving mistakes of a clerical nature."); French v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (stating that "an appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source" and adopting the reasoning of Asberry ); Asberry v. State , 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd) (noting that "[t]he authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court").
However, we may also choose, but are not obligated, to notify both appointed counsel and the State about the nonreversible error discovered by the Court and request supplemental briefing on the issue. See id. at 137 ("We do not suggest that an appellate court must order briefing every time it decides to raise on its own a point of error not briefed by the parties."). Clearly, there is a tipping point based on the novelty and complexity of the issue as to when a court of appeals can address the issue without briefing and when the parties should be provided notice and given the opportunity to brief the issue for the Court. Novel constitutional issues are a unique subset in this category of nonreversible error. The Court of Criminal Appeals has held that, for novel constitutional issues, we must request supplemental briefing on the unassigned, nonreversible issue. See id. at 138 ("Here, the Court of Appeals decided on its own to expand the reach of the Texas Constitution without first requesting briefing from the parties. We hold that its failure to afford the parties an opportunity to brief the issue was error."); cf. TEX. GOV'T CODE ANN. § 402.010 ("In an action in which a party to the litigation files a petition, motion, or other pleading challenging the constitutionality of a statute of this state, the party shall file the form required by Subsection (a-1). The court shall, if the attorney general is not a party to or counsel involved in the litigation, serve notice of the constitutional challenge and a copy of the petition, motion, or other pleading that raises the challenge on the attorney general ....").
As previously noted, unassigned, reversible error discovered in an Anders brief necessarily results in an abatement to the trial court for the appointment of new counsel to brief that and any other issues. See Bledsoe v. State , 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (citing Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) ).
And finally, because this Court does not have a mandatory duty to address unassigned error, we may also choose to ignore the nonreversible error. See Sanchez , 209 S.W.3d at 121 ; Pena , 191 S.W.3d at 136. It is unlikely that a reviewing appellate court will willfully ignore nonreversible error that is obvious. Rather, this subset of Category 3 nonreversible error is merely the residual of those nonreversible errors that are missed or overlooked by both appointed counsel and the reviewing appellate court.
CATEGORY 4
The final category of nonreversible error, Category 4, pertains to unpreserved nonreversible errors that have not been raised by appointed counsel and which are subject to procedural default. For these errors, we are prohibited from taking action to correct the error. See Sanchez , 209 S.W.3d at 121 (noting that errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was preserved in the trial court). It is highly unlikely that the Court would note or comment in the opinion on this type of error.
Treatment of the Motion to Withdraw in the Allison Situation
The bulk of this opinion has focused on how we will treat Allison briefing that is filed by appointed counsel. However, we must also address what to do with the motion to withdraw that is filed with an Allison brief. In an ordinary Anders brief that does not raise any nonreversible error, if we find that the appeal is frivolous (i.e., there is no arguable reversible error) after conducting our independent review, we grant appointed counsel's motion to withdraw. See Wilson , 955 S.W.2d at 698. On the other hand, when appointed counsel files a motion to withdraw with a merits brief or when counsel has filed an Anders brief that is not really an Anders brief, but rather a merits brief, we have dismissed appointed counsel's motion to withdraw as moot. See, e.g., Robinson v. State , Nos. 10-13-00304-CR & 10-13-00305-CR, 2014 WL 2810614, 2014 Tex. App. LEXIS 6631 (Tex. App.—Waco June 19, 2014, no pet.) (mem. op., not designated for publication) (concluding that appointed counsel's brief was not really an Anders brief, but rather a brief on the merits, and dismissing appointed counsel's motions to withdraw as moot); Hines , 2014 WL 2466562, at *2 n.2, 2014 Tex. App. LEXIS 5768, at *4 n.2 (same); cf. Vaughn v. State , Nos. 10-17-00275-CR & 10-17-00276-CR, 2018 WL 1321753 *1, 2018 Tex. App. LEXIS 1888 (Tex. App.—Waco Mar. 14, 2018, no pet.) (mem. op., not designated for publication) (dismissing a motion to withdraw as moot when counsel filed an Anders brief that was really a merits brief). However, as stated above, in an Allison brief, appointed counsel has asserted that there is no reversible error (the traditional Anders brief) but has also alleged that there is nonreversible error that requires judgment modification. See Allison , 609 S.W.3d at 628. In other words, the Allison brief contains both elements of an Anders brief and a merits brief. See id. Which line of cases should control when considering the motion to withdraw?
There are a few instances where this Court has dismissed a motion to withdraw as moot even after finding that there are no issues that might arguably support an appeal (i.e., a traditional Anders appeal). See, e.g., Paez v. State , Nos. 10-02-061-CR, 10-02-062-CR, & 10-02-063-CR, 2003 WL 21357276, at *1, 2003 Tex. App. LEXIS 5025, at *3 (Tex. App.—Waco June 11, 2003, no pet.) (mem. op., not designated publication); Andrews v. State , No. 10-01-240-CR, 2003 WL 1391065 at *1, 2003 Tex. App. LEXIS 2425 (Tex. App.—Waco Mar. 19, 2003, no pet.) (mem. op., not designated for publication) ; Spoon v. State , No. 10-02-178-CR, 2003 WL 1394324 at *1, 2003 Tex. App. LEXIS 2423 (Tex. App.—Waco Mar. 19, 2003, no pet.) (mem. op., not designated for publication). These decisions appear to conflict with the majority of other cases regarding the treatment of appointed counsel's motion to withdraw when an Anders brief has been filed. In Wilson v. State , this Court stated that the motion to withdraw in an ordinary Anders appeal should be granted, if the Court determined that there are no arguable issues to support an appeal. See 955 S.W.2d 693, 698 (Tex. App.—Waco 1997, no pet.). Therefore, we overrule the ruling of mootness of the motion to withdraw in Paez, Andrews , and Spoon .
Additionally, this Court has recently treated an Anders brief that also raised complaints about fines that were not orally pronounced as a brief on the merits, deleted the fines, and denied the motion to dismiss, rather than dismiss the motion to dismiss as moot. See, e.g., Washington v. State , No. 10-21-00014-CR, 2022 WL 806308 at *1, 2022 Tex. App. LEXIS 1785 (Tex. App.—Waco Mar. 16, 2022, no pet. h.) (mem. op., not designated for publication).
In Vaughn v. State , appointed counsel filed an Anders brief challenging the assessment of a $500 fine. See, e.g., Vaughn v. State , Nos. 10-17-00275-CR & 10-17-00276-CR, 2018 WL 1321753 at *1, 2018 Tex. App. LEXIS 1888 (Tex. App.—Waco Mar. 14, 2018, no pet.) (mem. op., not designated for publication). Although the Vaughn Court correctly concluded that the assessment of a $500 fine in each case was improper and deleted the fines because they were not orally pronounced at sentencing, see Taylor v. State , 131 S.W.3d 497, 502 (Tex. Crim. App. 2004), it appears that the Court also improperly conducted an Anders review. Vaughn , 2018 WL 1321753 at *1, 2018 Tex. App. LEXIS 1888, at *2. This was improper because the complaint about the fines was a merits issue involving reversible error that impacted the sentence imposed. See Armstrong v. State , 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) ("Fines are punitive, and they are intended to be part of the convicted defendant's sentence as they are imposed pursuant to Chapter 12 of the Texas Penal Code, which is entitled ‘Punishments.’ " (citing Weir v. State , 278 S.W.3d 364, 366 (Tex. Crim. App. 2009) )); State v. Crook , 248 S.W.3d 172, 174 (Tex. Crim. App. 2008) (holding that a fine is a part of the sentence); see also Vaughn v. State , Nos. 10-17-00275-CR & 10-17-00276-CR, 2018 WL 1321753 at *1, 2018 Tex. App. LEXIS 1888 (Tex. App.—Waco Mar. 14, 2018, no pet.) (mem. op., not designated for publication). Thus, what counsel labeled as an Anders brief was really a merits brief, which precluded this Court from conducting an independent review under Anders . Nevertheless, under this Court's precedent, the dismissal of the motion to withdraw as moot in Vaughn was correct.
Because an Allison brief does not advance any reversible error, but only nonreversible error, we believe that to be consistent with Anders ; thus, we must grant appointed counsel's motion to withdraw, rather than dismiss it. See In re Schulman , 252 S.W.3d at 408 ("[T]he Anders brief is only the proverbial ‘tail’; the motion to withdraw is the ‘dog’ ").
With the foregoing in mind, we analyze this appeal in which we identify two Category 3 nonreversible errors, although counsel has filed a motion to withdraw and an accompanying Anders brief raising neither reversible nor nonreversible error.
The Cummins Appeal
Appellant, Christopher B. Cummins, was charged by indictment with three counts of aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021. Cummins pleaded guilty to the charged offenses without the benefit of a plea bargain or punishment recommendation from the State. After a hearing, the trial court found Cummins guilty on all three counts of aggravated sexual assault of a child and sentenced him to twenty years in prison on each count with no fine. The trial court ordered the imposed sentences to run concurrently, assessed statutory court costs in each count, and certified Cummins's right to appeal. We affirm as modified.
PERTINENT PROCEDURAL BACKGROUND
• Cummins'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.
• In his Anders brief, Cummins's appointed counsel did not raise any potential reversible or nonreversible errors.
• In his motion to withdraw, Cummins's appointed counsel indicated that he provided Cummins with a copy of the motion to withdraw, the Anders brief, a copy of the Clerk's Record, and a copy of the Reporter's Record. Cummins's appointed counsel also advised Cummins about how to present issues to this Court, as well as Cummins's right to file a petition for discretionary review in the Court of Criminal Appeals.
• Cummins has filed a pro se response, asserting two issues: that the prosecutor may have taken illegal steps to obtain information from Cummins's sealed juvenile record and that the trial judge was biased.
• We provided notice to the State of the pro se response filed by Cummins.
• More than thirty days have passed since Cummins filed his pro se response, and the State has not filed a response.
ANDERS REVIEW
Counsel's brief evidences a professional evaluation of the record for error and compliance with the other duties of appointed counsel. We conclude that counsel has performed the duties required of appointed counsel. See Anders , 386 U.S. at 744, 87 S. Ct. at 1400 ; High v. State , 573 S.W.2d 807, 812 (Tex. Crim. App. 1978) ; see also Kelly v. State , 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014) ; In re Schulman , 252 S.W.3d at 407.
In reviewing an Anders appeal, we must, "after a full examination of all the proceedings ... decide whether the case is wholly frivolous." Anders , 386 U.S. at 744, 87 S. Ct. at 1400 ; see Penson v. Ohio , 488 U.S. 75, 82-83, 109 S. Ct. 346, 351, 102 L. Ed. 2d 300 (1988) ; accord Stafford , 813 S.W.2d at 509-11. An appeal is "wholly frivolous" or "without merit" when it lacks any basis in law or fact. McCoy v. Court of Appeals , 486 U.S. 429, 439 n.10, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). After a review of the entire record in this appeal, including Cummins's pro se response, we have determined that the appeal is wholly frivolous, meaning that there is no reversible error in this record. See Bledsoe , 178 S.W.3d at 826-27. Counsel's motion to withdraw from representation is granted.
NONREVERSIBLE ERROR DETECTED
However, despite finding no reversible error in this record, we have identified what we now recognize as Category 3 nonreversible error that is preserved or not subject to procedural default but was not raised by counsel. See Pena , 191 S.W.3d at 136. As mentioned above, Cummins was convicted of three counts of aggravated sexual assault of a child. As a result, the trial court signed three judgments of conviction. The judgments of conviction and the corresponding certified bills of costs indicate that statutory court costs were assessed in each judgment. This is a Hurlburt violation. See Hurlburt v. State , 506 S.W.3d 199, 203-04 (Tex. App.—Waco 2016, no pet.).
Because the cases were indicted and tried together in a single trial court cause number, there is only one appeal in this matter.
Where allegations and evidence of more than one offense are presented in a single trial or plea proceedings, the trial court errs in assessing costs in each conviction. See id. ; see also TEX. CODE CRIM. PROC. ANN. art. 102.073 ("In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant."). Because the trial court erred by assessing costs in all three judgments, we modify the judgments and corresponding bills of costs as to Counts 2 and 3 in trial court cause number 2021-22-C1 to delete the assessment of costs. See TEX. CODE CRIM. PROC. ANN. art. 102.073 ; see also Hurlburt , 506 S.W.3d at 203-04.
Additionally, in our review of the record, we have also discovered that the bill of costs contained in the originally-filed Clerk's Record was not certified. See TEX. CODE CRIM. PROC. ANN. art. 103.006 ("If a criminal action or proceeding is transferred from one court to another or is appealed , an officer of the court shall certify and sign a bill of costs stating the costs that have accrued and send the bill of costs to the court to which the action or proceeding is transferred or appealed." (emphasis added)). This deficiency was discovered after appointed counsel for Cummins had filed his motion to withdraw and accompanying Anders brief. After notification of the lack of a certified bill of costs in the Clerk's Record, the McLennan County District Clerk's Office filed a certified bill of costs dated March 14, 2022, in a Supplemental Clerk's Record. However, the certified bill of costs contained in the Supplemental Clerk's Record is not the same as the uncertified bill of costs contained in the originally-filed Clerk's Record. Specifically, in addition to the costs assessed in the uncertified bill of costs contained in the originally-filed Clerk's Record, the certified bill of costs in the Supplemental Clerk's Record also assessed $1,176 for court-appointed attorney's fees.
On January 20, 2021, the trial court determined that Cummins is indigent and appointed him trial counsel. Once Cummins was initially found to be indigent, he was presumed to remain indigent for the remainder of the proceedings unless it was shown that a material change in his financial resources had occurred. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p). The trial court did not make any findings or otherwise address Cummins's financial condition again before signing the judgments. Furthermore, after signing the judgments and in response to an "Application for Court Appointment of Attorney (Affidavit of Indigence)" filed by Cummins, the trial court found Cummins indigent and appointed him an attorney on appeal.
To assess attorney's fees against Cummins was error, and we conclude that this nonreversible error is not subject to procedural default. See Mayer v. State , 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2010) ; see also London , 490 S.W.3d at 507 (noting that, in the context of court-cost challenges, "an appellant may not be faulted for failing to object when he or she was simply not given the opportunity to do so"); Riles , 452 S.W.3d at 337 (emphasizing that procedural default is premised on both an appellant's knowledge of and failure to challenge an issue); Johnson , 423 S.W.3d at 390-91 (stating that an appellant may generally challenge the imposition of even mandatory court costs for the first time on direct appeal when those costs are not imposed in open court and the judgment does not contain an itemization of the imposed court costs). Moreover, because Cummins was determined to be indigent, and because there is no evidence of a material change in his financial resources, we modify the certified bill of costs contained in the Supplemental Clerk's Record to delete the assessment of $1,176 for court-appointed attorney's fees. See Mayer , 309 S.W.3d at 555-56 ; see also Kelly v. State , 453 S.W.3d 634, 644 (Tex. App.—Waco 2015, pet. ref'd).
CONCLUSION
Based on the foregoing, we modify the trial court's judgments and corresponding bills of costs as to Counts 2 and 3 in trial court cause number 2021-22-C1 to delete the assessment of costs. We further modify the certified bill of costs dated March 14, 2022, in the Supplemental Clerk's Record to delete the assessment of $1,176 for court-appointed attorney's fees. We affirm the judgments of the trial court as modified.
The Court of Criminal Appeals's decision in Dulin , as well as the London and Johnson decisions and certain provisions of the Texas Code of Criminal Procedure regarding the collection of court costs lead us to conclude that we can on direct appeal modify the bill of costs independent of finding error in the trial court's judgment. See Tex. Code Crim. Proc. Ann. arts. 103.001, 103.003, 103.006, 103.008 ; Dulin v. State , 620 S.W.3d 129, 133 (Tex. Crim. App. 2021) ; London v. State , 490 S.W.3d 503, 508 n.5 (Tex. Crim. App. 2016) ; Johnson v. State , 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) ; Dority v. State , 631 S.W.3d 779, 794 (Tex. App.—Eastland 2021, no pet.) ; see also Bryant v. State , 642 S.W.3d 847, 849–50 (Tex. App.—Waco 2021, no pet.).