Cummins v. State

• Decision Date: 11 May 2022
• Docket Number: 10-21-00303-CR
• Parties: Christopher B. CUMMINS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

646 S.W.3d 605

Christopher B. CUMMINS, Appellant

v.The STATE of Texas, Appellee

No. 10-21-00303-CR

Court of Appeals of Texas, Waco.

Opinion delivered and filed May 11, 2022

Christopher B. Cummins, Pro Se.

John M. Hurley, Attorney at Law, Waco, for Appellant.

Barry N. Johnson, McLennan County District Attorney, Waco, for Appellee.

Before Chief Justice Gray, Justice Johnson, and Justice Smith

STEVE SMITH, Justice

It has been more than twenty years since this Court last addressed its Anders procedures. See Sowels v. State , 45 S.W.3d 690, 692-94 (Tex. App.—Waco 2001, no pet.), overruled in part on other grounds by Meza v. State , 206 S.W.3d 684, 689 (Tex. Crim. App. 2006). Since our last comprehensive discussion of this Court's Anders procedures, there have been significant changes made to the scope of our review and the duties of the parties in Anders cases. In this opinion, we document the history of this Court's Anders procedures up to and including our order in Allison v. State to provide guidance to the bench and bar about changes to our Anders procedures, especially regarding treatment of nonreversible error raised in what is otherwise an Anders brief and the duties of the Court and the parties when nonreversible error is raised. See generally Allison v. State , 609 S.W.3d 624 (Tex. App.—Waco 2020, order).

Basic Anders Procedures

The basic Anders procedures are well known; however, they warrant repeating to help explain the changes to our Anders procedures. In Anders v. California , the United States Supreme Court emphasized that appointed counsel has a duty to zealously represent the interests of his client on appeal. See Anders v. California , 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). However, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." Id. at 744, 87 S. Ct. at 1400. In advising the court of the frivolity of the appeal, counsel must file a "brief referring to anything in the record that might arguably support the appeal" with his request to withdraw. Id. at 744, 87 S. Ct. at 1400. The Court of Criminal Appeals has explained that: "An Anders brief may not be filed without a motion to withdraw, as the sole purpose of an Anders brief is to explain and support the motion to withdraw." In re Schulman , 252 S.W.3d 403, 404 (Tex. Crim. App. 2008). With this brief exposition in mind, we endeavor to explain the evolution of our Anders procedures.

Briefing Required for Each Judgment

In our initial analysis of any brief filed by appointed counsel in a criminal appeal, we look to see if counsel has addressed each judgment. We have received briefs that only address one judgment in a multi-judgment case.¹ In Kirven v. State and subsequently in Loredo v. State , we began requiring counsel to either file a merits brief or a motion to withdraw and an accompanying Anders brief addressing each judgment. See, e.g., Loredo v. State , No. 10-15-00322-CR, 2016 Tex. App. LEXIS 13936 at **1-2 (Tex. App.—Waco Apr. 21, 2016, order) (per curiam) (not designated for publication) ; Kirven v. State , No. 10-14-00122-CR, 2015 Tex. App. LEXIS 13151 at **1-3 (Tex. App.—Waco Oct. 22, 2015, order) (per curiam) (not designated for publication). The obvious concern was that defendants were being deprived of meaningful appellate review of each judgment for which counsel had been appointed to represent them. Therefore, pursuant to Kirven and Loredo , each judgment of conviction must be addressed in a brief—either in an Anders or a merits brief. See, e.g., Loredo , 2016 Tex. App. LEXIS 13936, at **1-2; Kirven , 2015 Tex. App. LEXIS 13151, at **1-3.

The Collision Course

In 1996, in response to an Anders brief that also requested modification to the judgment to reflect accurately the allegations in the State's motion to revoke that were determined orally to be true, this Court addressed the question of "what amount of relief can a defendant be entitled and still be involved in an ‘ Anders ’ appeal." Evans v. State , 933 S.W.2d 334, 334 (Tex. App.—Waco 1996, no pet.) (per curiam). The Evans Court answered "zero." Id. In other words, the holding in Evans was that "if the defendant is entitled to any relief from the appellate court[,] he is not prosecuting a frivolous appeal. Thus, if there is an arguable basis for requesting any relief, counsel should present that argument to the appellate court in a brief on the merits." Id. at 334-35. The Evans Court stated that "if Evans is entitled to have the judgment reformed to match the court's oral findings, he is entitled to some ‘relief’ from this court." Id. at 335. Accordingly, Evans's appeal was not determined to be frivolous, and the Court abated the matter to the trial court for the appointment of new counsel. Id. at 336. For approximately twenty years, this Court followed Evans .

In recent years, however, we began to receive a growing number of Anders briefs that also requested modifications to the judgment. In response to these briefs, the Ferguson opinion was issued. See generally Ferguson v. State , 435 S.W.3d 291 (Tex. App.—Waco 2014, pet. dism'd). In Ferguson , Justice Scoggins recognized the well-established rule that appellate courts have the authority to reform judgments and affirm the judgment as modified. Id. at 293-94. Justice Scoggins also noted that numerous Texas courts were reforming judgments even when an Anders brief had been filed. Id. at 293-94. Therefore, in the interest of judicial economy, Justice Scoggins concluded that counsel could request a modification of the judgment in an Anders brief, and that the Court had the power to make the requested modification so long as the requested modification involved nonreversible error.² Id. at 294-95.

Though seductive in its simplicity, the Ferguson opinion suffers from at least two problems.³ First, by allowing appellate courts to modify a judgment within the Anders context, the State is deprived of an opportunity to respond to what is otherwise argued as error in the trial court's judgment. See Wilson v. State , 955 S.W.2d 693, 697 (Tex. App.—Waco 1997, no pet.) ("Accordingly, the State's right to file a responsive brief will commence upon the filing of a pro se response by an appellant."). In the vast majority of Anders appeals, pro se responses are not filed. Therefore, the State's right to respond is rarely triggered. See id. In other words, the State often is procedurally blocked from responding to the alleged nonreversible error that could result in a modification or reformation of the judgment. This problem is accentuated when, as has happened in later cases, counsel raises constitutional challenges to court costs within what is otherwise an Anders brief and no pro se response has been filed. See, e.g., Bryant v. State , No. 10-18-00352-CR, 2020 WL 103719, 2020 Tex. App. LEXIS 100 (Tex. App.—Waco Jan. 8, 2020) (addressing the constitutionality of the time-payment fee), vacated , No. PD-0092-20, 2021 WL 1936065, 2021 Tex. Crim. App. Unpub. LEXIS 405 (Tex. Crim. App. May 12, 2021) (per curiam) ; Lee v. State , No. 10-18-00334-CR, 2019 WL 7374769, 2019 Tex. App. LEXIS 11279 (Tex. App.—Waco Dec. 31, 2019) (same), vacated , No. PD-0065-20, 2021 WL 1938686, 2021 Tex. Crim. App. Unpub. LEXIS 376 (Tex. Crim. App. May 12, 2021) (per curiam) ; Anderson v. State , No. 10-18-00341-CR, 2019 WL 6936732, 2019 Tex. App. LEXIS 10969 (Tex. App.—Waco Dec. 18, 2019) (same), vacated , No. PD-0063-20, 2021 WL 1940556, 2021 Tex. Crim. App. Unpub. LEXIS 411 (Tex. Crim. App. May 12, 2021) (per curiam).

Second, and perhaps most importantly, the Ferguson opinion is not a true majority opinion, although it is routinely cited as such. Indeed, a majority of the justices of this Court concluded in Ferguson that the Anders brief filed by counsel requesting modification of the judgment was not a true Anders appeal, but rather a brief on the merits. See Ferguson , 435 S.W.3d at 297-98. After considering counsel's brief as a brief on the merits, the majority in Ferguson agreed that the judgment should be modified and affirmed as modified. Id. at 298.

On the same day this Court issued the Ferguson opinion, we also issued a published abatement order in McElwain v. State , whereby a majority of the justices on this Court abated an Anders appeal for the appointment of new counsel to brief nonreversible error—the assessment of attorney's fees against an indigent defendant. See McElwain v. State , 435 S.W.3d 298, 300 (Tex. App.—Waco 2014, order). The McElwain Court relied heavily on Evans to support abatement of the appeal for the appointment of new counsel.⁴ Id.

The Evolving Way to Handle Nonreversible Error

After issuing Ferguson and McElwain , we continued to receive Anders briefs that also raised nonreversible error. In Hines v. State , this Court addressed how to treat nonreversible error raised by counsel in what was otherwise an Anders brief. See, e.g., Hines v. State , Nos. 10-13-00286-CR & 10-13-00292-CR, 2014 WL 2466562 at *2, 2014 Tex. App. LEXIS 5768 (Tex. App.—Waco May 29, 2014, pet. ref'd) (mem. op., not designated for publication). In Hines , the briefed nonreversible error involved: (1) incorrect citations in the judgment of conviction pertaining to the defendant's pleas to enhancement paragraphs; (2) the assessment of court-appointed attorney's fees; (3) an incorrect reference to the operative statute for one of the offenses; and (4) an incorrect assessment of costs pertaining to the filing fee. See id. at *4, 2014 Tex. App. LEXIS 5768 at *2. Following the majority in Ferguson , the Hines Court concluded that counsel's Anders brief was really a brief on the merits and subsequently addressed the alleged errors and did not conduct an Anders independent review. Id. at *2, 2014 Tex. App. LEXIS 5768 at *4. Except for the filing fee, all of the briefed nonreversible errors resulted in modifications to the judgment. Id. at **2–3,...