Opinion
10-21-00266-CR
06-09-2023
CANDACE DELORES RIOS, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2016-20-C1
Before Chief Justice Gray, *Justice Johnson, and Justice Smith
ABATEMENT ORDER
PER CURIAM
Candace Delores Rios entered an open plea of guilty to first-degree felony injury of a child. See TEX. PENAL CODE ANN. § 22.04. Following a sentencing hearing, the trial court assessed Rios's punishment at forty years' imprisonment. This appeal ensued. We will abate the appeal to allow the trial court to consider Rios's arguments regarding the trial court's assessment of costs against her.
Rios's appointed counsel has filed a motion to withdraw and what we now refer to as an Allison brief-a traditional Anders brief that alleges a nonreversible error not subject to procedural default. Specifically, counsel alleges error in the trial court's calculation of various statutorily governed costs. Rios filed a pro se brief in which she raises multiple arguments but does not mention costs. The State filed a letter indicating that it would not file a brief in this matter.
See Cummins v. State, 646 S.W.3d 605, 614-16 (Tex. App.-Waco 2022, pet. ref'd) (citing Anders v. California, 386 U.S. 738 (1967), and Allison v. State, 609 S.W.3d 624, 628 (Tex. App.-Waco 2020, order)). The Allison brief here was filed by a counselor previously appointed to represent Rios, but present counsel filed a letter adopting that brief, so we will refer to the brief as his own.
The Code of Criminal Procedure requires a trial court to order a defendant to pay court costs. See TEX. CODE CRIM. PROC. ANN. arts. 42.15 (applicable when punishment is fine only), 42.16 (applicable when punishment is something other than or in addition to 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. As we have explained, "[I]n most instances, any errors in the imposition of court costs are first raised in the appellate court" because "[t]rial courts are rarely afforded the opportunity to correct any errors regarding the imposition" of those costs. Welch v. State, No. 10-21-00284-CR,__ S.W.3d__,__, 2022 WL 9769896, at *1 (Tex. App.-Waco Oct. 12, 2022, no pet.) (citing Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006)). Thus, when counsel files an Allison brief, we "treat the briefed nonreversible error as a merits issue." Cummins, 646 S.W.3d at 612.
The rules of procedure provide that we may 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." See TEX. R. APP. P. 44.4(a). In this case, counsel for Rios argues that several costs were calculated using outdated statutes. In addition, our review of the record reveals that the costs as certified are not consistent with the costs assessed in the judgment, and the reason for this discrepancy is unclear. Because of the lack of clarity in the ultimate assessment of costs, this alleged error is not properly presented for our review and possible correction. Moreover, any mistake in the assessment of costs can be remedied by the trial court upon abatement of this appeal. See Welch,__ S.W.3d at__, 2022 WL 9769896, at *2 (abating for trial court's reconsideration of costs after citing Johnson, 423 S.W.3d at 389-91, and gathering other authorities in support).
We therefore abate this appeal to allow the trial court to review only the statutorily mandated costs assessed and, if necessary, to correct that assessment. The trial court shall conduct a hearing on costs within thirty days of this order, and the District Clerk and Court Reporter shall file a Supplemental Clerk's Record and Supplemental Reporter's Record with the Clerk of this Court within fourteen days of the date the trial court conducts that hearing.
Order issued and filed June 9, 2023 RWR
DISSENT TO ABATEMENT ORDER
TOM GRAY Chief Justice
In this appeal, the appellant has fully briefed an issue regarding court costs. The issue is thus ready for the Court to decide. But rather than decide the issue, the Court abates the appeal to the trial court to review the issue.
These issues do not need further development in the trial court. The assessment of costs in the judgment is either correct, or it is not. There is no "'trial court's error [that] prevents the proper presentation of the case to the appellate courts.'" Fakeye v. State, 227 S.W.3d 714, 717 (Tex. Crim. App. 2007) (quoting TEX. R. APP. P. 44.4). Thus, the preconditions for the application 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).
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.
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 3 ("We therefore abate this appeal to allow the trial court to review only the statutory mandated costs assessed and, if necessary, to correct that assessment."). 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).
Additionally, I see no reason for a distinction for limiting this procedure to the issue of alleged error in mandatory costs. If the procedure is valid at all, it would be valid to any issue that did not require preservation. And even on issues that are preserved, could we nevertheless require the trial court to again consider the issue in light of the appellant's briefs?
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 costs 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?
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. See, e.g., Cunningham v. State, 643, 322 S.W.2d 538, 540 (1959). And if there are new or different allegations of error as a result of this abatement process, does the whole abatement ritual start over? If so, how many cycles do we have to endure?
It is unlikely that any change to costs 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 costs other than what appears in the judgment as a result of a clerical error.
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, of 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 costs in criminal proceedings. And while it is not limited to Allison briefs 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 costs. See generally, Cummins v. State, 646 S.W.3d 605 (Tex. App.-Waco 2022, pet. ref'd).
Allison briefs are discussed in Cummins v. State, 646 S.W.3d 605, 2022 Tex.App. LEXIS 3232, *18 (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 costs, 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.