Vincent Eusebio Briceno v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-22-00048-CR

VINCENT EUSEBIO BRICENO,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 278th District Court
Leon County, Texas
Trial Court No. 21-0101CR

DISSENT

I have some observations about the court costs issue, Issue Four, as discussed in

the Court’s opinion that I think should make those attorneys and judges laboring with

cost issues pause to consider whether the Court’s opinion is correct. I think the opinion

and judgment are erroneous in a number of ways, 1 and in other ways, could be improved

1
For example, in this proceeding, the Court makes a recurring error in its statement of the standard in
conducting its harm analysis. It states that the defendant “must show egregious harm” citing Almanza v.
State, 686 S.W.2d 157 (Tex. Crim. App. 1985). I have commented on this erroneous statement included in
this Court’s opinions so often that I gave up on always catching it and commenting upon it. But since I
have been forced to write a dissent, I will point it out, yet again, and move on to other issues. Since Ovalle
to be a better guide. I could capture my thoughts in a long and formal dissenting opinion,

but to those interested in the narrow issue of court costs, I think they will be able to follow

this “note” format that I have used herein.

My observations on the Court’s opinion and judgment are as follows:

1. Abatement procedure—a majority of this Court has developed and
used an abatement procedure when court costs assessed in the trial court’s
judgment are at issue on appeal. See Willingham v. State, No. 10-21-00158-
CR (Tex. App.—Waco Oct. 19, 2022, order); Carnley v. State, No. 10-21-
00104-CR (Tex. App.—Waco Oct. 19, 2022, order); Welch v. State, 668 S.W.3d
54 (Tex. App.—Waco 2022, order). I have disagreed with that procedure.
(see dissenting opinions in each). This Court has recently used the
abatement procedure. Rios v. State, No. 10-21-00266-CR (Tex. App.—Waco,
June 9, 2023, order). But for some reason, that procedure is not always used,
see Moore v. State, No. 10-22-00051-CR, 2023 Tex. App. LEXIS 2717 (Tex.
App.—Waco Apr. 26, 2023, no pet.); Fields v. State, No. 10-21-00275-CR, 2022
Tex. App. LEXIS 8588 (Tex. App.—Waco Nov. 22, 2022, no pet.), and it was
not used here. Why? I am trying to figure this out so that I can understand
when the procedure should be used and to see if we are consistently
applying it. I can offer the reader no help in this analysis.

2. I would really encourage any person evaluating the assessment of a
fee for a “release” pursuant to article 102.011(a)(6) of the Texas Code of
Criminal Procedure to take a serious look at Attorney General Abbott’s
analysis of why the “release” from confinement is different from a
“transfer” to TDCJ. Tex. Att'y Gen. Op. No. GA-1063, 2014 Tex. AG LEXIS
30 (2014). The appellant’s brief in this case and that AG opinion explain
why the $5.00 release fee is very different from and should not be charged
for a transfer. See id. It is noteworthy that there is only one case cited by
the Court that relates to a release/transfer fee and that case mentioned but
did not discuss the AG’s opinion or the analysis discussed therein. See
Williams v. State, 495 S.W.3d 583, 592 n. 7 (Tex. App.—Houston [1st Dist.]
2016, pet. dism'd).

v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000), it has been crystal clear that a defendant/appellant has no
burden or duty to “show harm.” The Court of Criminal Appeals stated, “We do not resolve the issue by
asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm, ….
No party should have a burden to prove harm from an error, and there ordinarily is no way to prove
‘actual’ harm. Burdens and requirements of proving actual facts are appropriate in the law of evidence,
but they have little meaning for the harmless-error decision.” Id. at 787.
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3. The error in assessing a number of the costs was agreed to by the
State. It usually helps the reader understand if we make that observation.
Also the legal analysis can then be truncated with not much more than “We
agree.” Much of the discussion in the Court’s opinion could thus have been
avoided.

4. The largest cost being addressed is the $1,000 in attorney’s fees. The
opinion and judgment are written as if the trial court assessed the attorney’s
fees as costs. It did not. And the issue is not briefed as if the trial court did.
Attorney’s fees are included in the Bill of Costs. In this issue, the appellant’s
briefing attacks the Bill of Costs, not the trial court’s judgment. This is one
of the issues that the State concedes is erroneous. But because the error is
only in the Bill of Costs and not in the judgment, if this Court’s judgment is
issued as written, we will be deducting from the judgment more costs than
the trial court actually assessed. How can that possibly be correct?

5. Item 4 above reveals both the validity and the importance of the
question that Chief Justice Jim Wright (retired) raised when working with
us in a post-Cummins v. State, 646 S.W.3d 605 (Tex. App.—Waco 2022, pet.
ref'd), post-Bryant v. State, 642 S.W.3d 847, 850 (Tex. App.—Waco 2021, no
pet.) case: Where is our authority to amend the bill of costs? I thought it
was such an important question for many cases being decided involving
attacks on court costs that all the members of the Court should have input
in the resolution of the issue. Because one of our justices was recused in the
case in which the question was raised, hence Chief Justice Wright’s
participation, I redacted the specific case information and circulated the
issue in a generic format for discussion and analysis. After some serious
soul searching and research, I thought the members of the Court had come
to the conclusion that Chief Justice Wright was correct; that we do not have
the authority to render a judgment ordering the district clerk to modify the
Bill of Costs. That resulted in a compromise in the way that some of our
subsequent opinions, with corresponding judgments, have been written
where we correct the trial court’s judgment, but only suggest that the Bill
of Costs be modified for the same changes/reasons. See the trilogy of cases
of Simmons v. State, No. 10-18-00269-CR, 2023 Tex. App. LEXIS 450, *10 n.7
(Tex. App.—Waco Jan. 25, 2023, no pet.), Lee v. State, No. 10-18-00334-CR,
2022 Tex. App. LEXIS 9460, *4 n.4 (Tex. App.—Waco Dec. 28, 2022, no pet.),
Anderson v. State, No. 10-18-00341-CR, 2022 Tex. App. LEXIS 9459, *8 n.4
(Tex. App.—Waco Dec. 28, 2022, pet. ref'd). A critical legal issue to note
that is relevant to this analysis and solution is that the Court of Criminal
Appeals has the authority/jurisdiction to mandamus a district clerk, a
Court of Appeals does not. See TEX. GOV'T CODE §§ 22.201(k), 22.221(a), (b);
In re Simmonds, 271 S.W.3d 874, 879 (Tex. App.—Waco 2008, orig.

Briceno v. State Page 3
proceeding); see also In re Daniel, 396 S.W.3d 545 (Tex. Crim. App. 2013)
(converting habeas corpus application to a mandamus petition and
ordering district clerk to modify “Bill of Cost”).

In summary, if the abatement procedure is an available tool, and I do not know

when to use it based upon the Court’s authority, why is it not used in this proceeding?

Further, how could a trial court’s judgment be in error if the judgment specifically does

not include costs that are improperly included in the Bill of Costs, and how can we

properly modify a trial court’s judgment to remove a cost that was not actually included

in it? Finally, and most importantly, from where do we obtain the authority to order the

trial court clerk to correct a bill of costs? Because the Court modifies the trial court’s

judgment to remove costs that were not included therein and because we have no

authority to order the district clerk to fix the Bill of Costs, but yet that is what the Court’s

judgment attempts to do, I respectfully dissent.

TOM GRAY
Chief Justice

Dissent delivered and filed August 9, 2023
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