Troy Eugene Welch v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 12, 2022
• Docket: 10-21-00284-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00284-CR

TROY EUGENE WELCH, Appellant v.

THE STATE OF TEXAS, Appellee

From the 278th District Court Leon County, Texas Trial Court No. 19-0131CR

ABATEMENT ORDER

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 (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.

Welch v. State Page 2 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

Welch v. State Page 3 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

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.

Welch v. State Page 4 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.

PER CURIAM

Before Chief Justice Gray,* Justice Johnson, and Justice Smith Order issued and filed October 12, 2022 *(Chief Justice Gray dissenting.) Publish

Welch v. State Page 5