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
Troy Eugene Welch v. the State of Texas
Combined Opinion