Troy Eugene Welch v. the State of Texas ( 2022 )

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
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
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.
Welch v. State Page 2
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, 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
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.
Welch v. State Page 3
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,
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 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.
TOM GRAY
Chief Justice
Allison briefs are discussed in Cummins v. State, 646 S.W.3d 605, 2022 Tex. App. LEXIS 3232, *18 (Tex.
4
App.—Waco 2022, pet. ref’d).
Welch v. State Page 4
Dissent to Abatement Order issued and filed October 12, 2022
Publish
Welch v. State Page 5