Candace Delores Rios v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-21-00266-CR

CANDACE DELORES RIOS,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2016-20-C1

OPINION

Candace Delores Rios pleaded guilty to the first-degree felony offense of injury to

a child. The trial court found Rios guilty, assessed her punishment at forty years in the

penitentiary, and sentenced her accordingly.

Rios’s prior 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 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967). Rios was notified by this Court and by counsel of her right to file a

response, and she has done so.

Rios’s current counsel has adopted prior counsel’s amended Anders brief filed with

the Court on February 9, 2022, which demonstrates a professional evaluation of the

record for error and compliance with the other duties of appointed counsel and

additionally identifies several nonreversible issues related to the fees and costs assessed

in the judgment and bill of costs, what we have termed an Allison brief. See Cummins v.

State, 646 S.W.3d 605, 614 (Tex. App.—Waco 2022, pet. ref’d) (referring to Allison v. State,

609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order) (per curiam)). When counsel files an

Allison brief, we “will conduct an independent review of the record for reversible error

involving the defendant’s conviction and sentence and then treat the briefed

nonreversible error as a merits issue.” Id. at 612. We conclude that counsel has performed

the duties required of appointed counsel. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400;

High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978); see also Kelly v.

State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 407–

09 (Tex. Crim. App. 2008).

When counsel files an Allison brief, the State is expected to file a response

addressing the merits of the nonreversible error presented. See Cummins, 646 S.W.3d at

612. The State did not file a brief in response to counsel’s motion to withdraw and

supporting Anders brief and waived responding to Rios’s pro se response.

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In reviewing an Anders appeal, we must, “after a full examination of all the

proceedings, . . . decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87

S.Ct. at 1400; see Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 349–50, 102 L.Ed.2d 300

(1988); accord Stafford v. State, 813 S.W.2d 503, 509–11 (Tex. Crim. App. 1991). An appeal

is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy

v. Court of Appeals, 486 U.S. 429, 438 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988).

After a review of the entire record in this appeal, we have determined the appeal to be

wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).

While we conclude there is no error that would require reversal of Rios’s

conviction or sentence, the Allison brief, as noted, includes what we identify as Category

2 nonreversible errors that are not subject to procedural default. See Cummins, 646 S.W.3d

at 616. Claims of error related to the assessment of fees and court costs, as in this case,

may be raised for the first time on appeal. London v. State, 490 S.W.3d 503, 507 (Tex. Crim.

App. 2016).

In cases such as this, appellate courts have the authority to reform judgments and

to affirm as modified where nonreversible error is identified. Cummins, 646 S.W.3d at 610

n.2; Allison, 609 S.W.3d at 628. A court of appeals also has the authority to correct and

reform a judgment to make the record speak the truth when it has the information to do

so. See TEX. R. APP. P. 43.2(b) (authorizing a court of appeals to “modify a trial court’s

judgment and affirm it as modified”); see also Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.

Rios v. State Page 3
Crim. App. 1993). We are also authorized to correct errors in a bill of costs independent

of finding error in the trial court’s judgment. See Briceno v. State, 675 S.W.3d 87, 100–01

(Tex. App.—Waco 2023, no pet.); Cummins, 646 S.W.3d at 622 n.12 (citing Dulin v. State,

620 S.W.3d 129, 133 (Tex. Crim. App. 2021), and London, 490 S.W.3d at 508 n.5).

Court costs are not required to be orally pronounced at sentencing as they are not

punitive like fines or restitution and do “not alter the range of punishment to which the

defendant is subject, or the number of years assessed.” Weir v. State, 278 S.W.3d 364, 367

(Tex. Crim. App. 2009) (quoting Ex parte Huskins, 176 S.W.3d 818, 821 (Tex. Crim. App.

2005)). The imposition of court costs is mandatory under Article 42.16 of the Code of

Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 42.16; Martinez v. State, 507 S.W.3d

914, 916 (Tex. App.—Waco 2016, no pet.). However, the court may only impose those

costs that are statutorily authorized. See Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim.

App. 2014). There must also be a basis in the record for the assessment of a cost. See id.

at 390; see also Wolfenbarger v. State, 581 S.W.3d 455, 459 (Tex. App.—Texarkana 2019, no

pet.).

Rios initially challenged the assessment of $505 in total court costs in the certified

bill of costs versus the schedule of court costs attached to the trial court’s judgment

reflecting $475 in total court costs. Rios also contends that proper total court costs in this

case amount to $409. This appeal was abated to the trial court pursuant to Rule 44.4(a) of

the Rules of Appellate Procedure. See TEX. R. APP. P. 44.4(a). The trial court clerk filed a

Rios v. State Page 4
supplemental record containing the trial court’s order on abatement and an amended

certified bill of costs. This appeal was reinstated on August 14, 2023. Supplemental

briefing by the parties was requested; however, no additional briefing was filed.

The amended certified bill of costs entered after the June 9, 2023 abatement hearing

in the trial court reflects a total of $419 in assessed court costs, all of which are shown to

be paid. Because the only issue raised by Rios is purely monetary, the voluntary payment

of the fine and court costs rendered the appeal moot. See Dulin, 620 S.W.3d at 131. We

therefore overrule Rios’s issue regarding assessed court costs.

We grant the motion to withdraw and affirm the judgment of the trial court.

MATT JOHNSON
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed December 14, 2023
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