Opinion
No. 10-22-00379-CR
12-28-2023
Markqual Darnell PALACIO, Appellant v. The STATE of Texas, Appellee
Attorney for Appellant/Relator: Stan Schwieger, Schwieger Law Office, Waco, TX. Attorneys for Appellees/Respondent: Dustin H. Boyd, Coryell County District Attorney, Charles Karakashian Jr., Coryell County Asst. District Attorney, Gatesville, TX.
From the 52nd District Court, Coryell County, Texas, Trial Court No. 15-22749, Hon. Trent D. Farrell, Judge
Attorney for Appellant/Relator: Stan Schwieger, Schwieger Law Office, Waco, TX.
Attorneys for Appellees/Respondent: Dustin H. Boyd, Coryell County District Attorney, Charles Karakashian Jr., Coryell County Asst. District Attorney, Gatesville, TX.
Before Chief Justice Gray, Justice Johnson, and Justice Smith
OPINION
STEVE SMITH, Justice
Appellant, Markqual Darnell Palacio, was indicted for the offense of aggravated robbery. See Tex. Penal Code Ann. § 29.03. Pursuant to a plea bargain with the State, Palacio pleaded guilty to the lesser-included offense of attempted robbery. The trial court accepted Palacio’s guilty plea and placed him on deferred adjudication community supervision for ten years and assessed a $2,500 fine, $254 in court costs, and $50 in restitution. Palacio did not appeal the trial court’s Order of Deferred Adjudication.
Thereafter, the trial court signed two orders modifying the conditions of Palacio’s supervision. Because Palacio did not comply with the terms and conditions of his supervision, the State filed a motion to adjudicate guilt and revoke community supervision. In its motion, the State alleged that Palacio violated the terms and conditions of his supervision by committing the offense of driving while intoxicated and failing "to avoid injurious and vicious habits, refrain from purchasing, possessing, owning, consuming, and/or using alcoholic beverages, to include any ‘Non-Alcoholic Beer Substitutes’ such as Sharps, etc. …"
At the hearing on the State’s motion to adjudicate guilt and revoke community supervision, Palacio pleaded "true" to both of the State’s allegations. The trial court accepted Palacio’s pleas, found the allegations made by the State to be true, revoked Palacio’s supervision, and sentenced him to eight years in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified Palacio’s right to appeal the revocation of his deferred adjudication community supervision, and this appeal followed.
Background of this Appeal
Palacio’s appointed counsel filed a motion to withdraw and an Anders brief in support of the motion asserting that he had diligently reviewed the appellate record and that, in his opinion, the appeal is frivolous. See generally Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,18 L. Ed. 2d 493 (1967). However, in his Anders brief, appointed counsel challenged the assessment of $1,893 in "District Court Fines." Specifically, appointed counsel argued that the $1,893 in "District Court Fines" should be deleted from the judgment and bill of costs because they were not orally pronounced when he was adjudicated.
A review of the record shows that in its Order of Deferred Adjudication, the trial court assessed a $2,500 fine, $254 in court costs, and $50 in restitution. The bill of costs corresponding with the Order of Deferred Adjudication reflected, among other things, $2,500 in "District Court Fines."
Despite the foregoing, the judgment adjudicating guilt indicated that $1,893 in "Court Costs" were assessed. The certified bill of costs corresponding with the judgment adjudicating guilt reflected that $2,393 in "District Court Fines" had been assessed, $500 had been paid, and $1,893 was still owed by Palacio.
Because we were unsure whether the subject of Palacio’s complaint—the assessment of $1,893—pertained to court costs or was the remaining balance owed on the $2,500 imposed fine, we abated this appeal and remanded this cause to the trial court to: (1) determine if the $1,893 in "District Court Fines" are actually court costs or if they are the remaining balance owed on the $2,500 fine that corresponded with the judgment placing Palacio on deferred adjudication community supervision; and (2) correct the judgment and bill of costs if any error exists with regard to the $1,893 in "District Court Fines." See Welch v. State, 668 S.W.3d 54, 56 (Tex. App.—Waco 2022, order) (abating an appeal and remanding to the trial court to reconsider the assessment of court costs where the alleged errors in the assessment of court costs prevents the proper presentation of the case to the appellate court). The trial court conducted a hearing and determined that the $1,893 in "District Court Fines" reflected the balance owed on the $2,500 fine that corresponded with the judgment placing Palacio on deferred adjudication community supervision. And because no fine was orally pronounced at the time Palacio’s community supervision was revoked and he was sentenced to a term in prison, the trial court signed a Judgment Adjudicating Guilt Nunc Pro Tunc to delete the assessment of $1,893 from both the judgment and bill of costs, thereby resolving the complaint raised by Palacio in his Anders brief.
[1–3] "In order to address an issue on appeal, an appellate court must be presented with a justiciable controversy." Glover v. State, 406 S.W.3d 343, 350 (Tex. App.—Amarillo 2013, pet. ref'd). "The courts of appeals are without jurisdiction to entertain an appeal wherein all the issues sought to be resolved by the court are moot." State v. Curl, 28 S.W.3d 838, 841 (Tex. App.—Corpus Christi 2000, no pet.). Because the trial court’s Judgment Adjudicating Guilt Nunc Pro Tunc resolved Palacio’s complaint about the assessment of $1,893, we conclude that the complaint is moot. See Glover, 406 S.W.3d at 350; see also Curl, 28 S.W.3d at 841. We overrule Palacio’s sole issue on appeal.
Appointed Counsel’s Supplemental Brief
In a supplement brief, Palacio’s appointed counsel acknowledges that the complaint about the assessment of $1,893 is moot but argues that his remaining issue is not moot. A review of Palacio’s original Anders brief reveals that appointed counsel did not raise any other issues. Instead, what Palacio’s appointed counsel appears to contend in his supplemental brief is that Palacio is entitled to an independent review of his conviction and sentence under Anders.
[4] As noted above, the trial court concluded that the $1,893 in "District Court Fines" reflected the balance owed on the $2,500 fine that corresponded with the judgment placing Palacio on deferred adjudication community supervision. A fine constitutes punishment and is part of a defendant’s sentence. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) ("Fines are punitive, and they are intended to be a 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). In Allison v. State, this Court noted:
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.
609 S.W.3d 624, 625 (Tex. App.—Waco 2020, order). The Allison Court further explained that: (1) an issue is frivolous if it presents no reversible error; and (2) reversible error is error that could result in the reversal or modification, in whole or in part, of the conviction or punishment imposed. Id. at 628.
[5] Because he challenged the assessment of a fine, which is part of the sentence imposed, appointed counsel raised a non-frivolous merits issue involving reversible error. See Cummins v. State, 646 S.W.3d 605, 619 n.10 (Tex. App.—Waco 2022, pet. ref'd) (noting that where appointed counsel filed an Anders brief challenging the assessment of a $500 fine should have been considered a merits brief for which an Anders independent review is inappropriate because a complaint about a fine is a merits issue involving reversible error that impacted the sentence imposed (citing Vaughn v. State, Nos. 10-17-00275-CR & 10-17-00276-CR, 2018 WL 1821753, at *——, 2018 Tex. App. LEXIS 1888, at *2 (Tex. App.—Waco Mar. 14, 2018, no pet.) (mem. op., not designated for publication))); Allison, 609 S.W.3d at 628; see also Armstrong, 340 S.W.3d at 767; Crook, 248 S.W.3d at 174. And consistent with the precedent of this Court, we conclude that appointed counsel’s original brief was really a merits brief raising a non-frivolous issue involving reversible error, which precludes this Court from conducting an independent review of the record under Anders. See Cummins, 646 S.W.3d at 619 n.10.
We recognize that the application of our precedent in Allison and Cummins to this case where the ambiguous treatment of the assessment of $1,893 in terms of whether it was a court cost or the remaining balance owed on a fine may appear to be unjust. See Cummins v. State, 646 S.W.3d 605, 619 n.10 (Tex. App.—Waco 2022, pet. ref’d); see also Allison v. State, 609 S.W.3d 624, 625 (Tex. App.—Waco 2020, order). However, we note that as a result of the abatement procedure outlined in Welch, Palacio obtained the relief he sought—the modification of the judgment and bill of costs to delete the assessment of $1,893. See Welch v. State, 668 S.W.3d 54, 56 (Tex. App.—Waco 2022, order).
I would also order the trial court to withdraw the void nunc pro tunc judgment it signed on September 20, 2023. I note that if the Court is correct in its ability to even consider the judgment nunc pro tunc in this appeal, then it should perform its independent review of that judgment.
Conclusion
Because we have concluded that Palacio’s sole complaint on appeal is moot, we dismiss this appeal and counsel’s motion to withdraw for lack of jurisdiction.
(Chief Justice Gray dissenting)
DISSENTING OPINION
TOM GRAY, Chief Justice
This Court embarked upon an extensive review and discussion of its Anders procedure in Cummins. Cummins v. State, 646 S.W.3d 605 (Tex. App.—Waco 2022, pet. ref'd). In Cummins, we were careful to distinguish between reversible error and nonreversible error. Id. If the alleged error impacts guilt or punishment, it can only be raised in a merits brief. See e.g. id. at 614, 618-619, n.10.
Although wrapped up and labeled an Anders/Allison brief, in which only non-reversible errors on the merits can be raised, the error raised in this appeal is about punishment - a fine. We have routinely ignored the wrapper and treated such briefs for what they are, a brief on the merits of a nonfrivolous issue. See Vaughn v. State, Nos. 10-17-00275-CR & 10-17-00276-CR, 2018 WL 1321753, **—–—, 2018 Tex. App. LEXIS 1888, (Tex. App.—Waco Mar. 14, 2018, no pet.) (not designated for publication); Hines v. State, Nos. 10-13-00286-CR, 10-13-00292-CR, 2014 WL 2466562, at *—, 2014 Tex. App. LEXIS 5768, at **2-3 (Tex. App.—Waco May 29, 2014, pet. ref'd) (not designated for publication). See also Cummins v. State, 646 S.W.3d 605, 614, 618-19, n.10 (Tex. App.—Waco 2022, pet. ref'd).
The Court disregarded its precedent on this issue. It was readily apparent upon review of the record that no fine had been pronounced at the sentencing hearing, as it must be to be included in the judgment, and the purported court costs was the balance due on the fine. This was the only issue briefed. It could have been disposed of at that point in a quick two-page opinion.
But rather than dispose of the appeal, the Court abated the appeal. The alleged basis of the abatement was via the use of a procedure to which I had repeatedly dissented. See e.g. Willingham v. State, No. 10-21-00158-CR (Tex. App.—Waco Oct. 19, 2022, order) (not designated for publication); Carnley v. State, No. 10-21-00104-CR (Tex. App.—Waco Oct. 19, 2022, order) (not designated for publication); Welch v. State, 668 S.W.3d 54 (Tex. App.—Waco 2022, order); Rios v. State, No. 10-21-00266-CR, (Tex. App.—Waco, June 9, 2023, order) (not designated for publication) and others. I dissented to its use in those appeals and this appeal as well. Nevertheless, the appeal was abated.
That is when our real problems began. The trial court, faced with what was so clearly an error, simply signed a nunc pro tunc judgment. I understand why the trial court did it. The Court essentially forced the trial court into doing it; but we erred in doing so. We cannot abate a proceeding to require a trial court to fix an error that does not prevent a proper presentation on appeal. See Tex. R. App. P. 44.4; Carnley v. State, No. 10-21-00104-CR, 682 S.W.3d 287,—–—, 2023 WL 8265326, *—–—, 2023 Tex. App. Lexis 8896, (Tex. App.—Waco Nov. 30, 2023) (publish) (Gray, C.J., dissenting). I have argued strenuously against the use of this procedure. Id.
The Court has now used the procedure beyond reviewing the assessment of mandatory court costs; now, it is being used to allow the trial court to review sentencing errors in the judgment. Just one of the many problems in using this procedure is that we now have a judgment from which no appeal was taken—the Nunc Pro Tunc Judgment—and the defendant cannot get that judgment properly reviewed without starting an entirely new appeal. See Carnley v. State, No. 10-21-00104-CR, 682 S.W.3d 287,—–—, 2023 WL 8265326, *—–—, 2023 Tex. App. Lexis 8896, (Tex. App.—Waco Nov. 30, 2023) (publish) (Gray, C.J., dissenting). Because we have no certification of the right to appeal or a timely notice of appeal, that appeal, of the nunc pro tunc judgment, will require the granting of a writ of habeas corpus for an out-of-time appeal.
In summary, I would follow this Court’s precedent in Hines/Vaughn/Cummins, consider the issue on its merits, reform the judgment to delete the fine, affirm the judgment as reformed, and dismiss counsel’s motion to withdraw as moot. See Vaughn v. State, Nos. 10-17-00275-CR & 10-17-00276-CR, 2018 WL 1321753, **—–—, 2018 Tex. App. LEXIS 1888, **2-3 (Tex. App.—Waco Mar. 14, 2018, no pet.) (not designated for publication); Hines v. State, Nos. 10-13-00286-CR, 10-13-00292-CR, 2014 WL 2466562, at *—, 2014 Tex. App. LEXIS 5768, at *4 (Tex. App.—Waco May 29, 2014, pet. ref'd) (not designated for publication). See also Cummins v. State, 646 S.W.3d 605, 614, 618-19, n.10 (Tex. App.—Waco 2022, pet. ref'd).1a