### IN THE TENTH COURT OF APPEALS No. 10
- 21
- 00104
- CR CARL CLIFTON CARNLEY , Appellant v. THE STATE OF TEXAS , Appellee

From the 369th District Court Leon County, Texas Trial Court No. 19
- 0011CR

DISSENTING OPINION
This case presents a train wreck of procedure and law. It is one of those times when I wish that what I foretold would not have come to pass. But here it is.
Let me present an indisputable fact to get your attention and then see if together we can find a way out of this morass. Mr. Carnley was assessed $124.00 of court cost s. After a successful appeal , he now owes $879.00. Specifically, t he judgment of the trial court which was the subject of this appealCarnley v. State Page 2 when it was filed assessed “Unpaid Court Costs” in the amount of $124.00. After sustaining appellant’s complaints regarding the erroneous assessment of $24.00 of court
cost s, the Court modifies the trial court’s current judgment and reduces the “Unpaid Court Cost” to $824.00 ($848.00

- $24.00 = $824) plus $55.00 for reimbursement fees for a total of $879.00. This is the result of a successful appeal? I do not believe Mr. C arnley would agree with that characterization.
P ROCEDURAL B ACKGROUND How did we get here? Maybe the better question is , where in the legal world are
we? Deferred Adjudication Order Carnley was first placed on Community Supervision

– Deferred Adjudi cation. The Order of Deferred Adjudication , which is actually a final judgment in every sense of the term, was signed on August 29, 2019. It was the result of a plea bargain. The terms of the plea bargain are summarized on the face of the order as follo ws: Five (5) years deferred adjudication, $308.00 court cost, $2,500.00 fine, $50.00 Crimestoppers, $50.00 Crime Victims Fund, $180.00 Restitution Drug Offender Education Court, Intensive Supervision Program and 275 Community Service Hours. A $25.00 fee w ill be assessed if court cost, fine or restitution are not paid within 30 days of this Judgment. Note the total of these amounts is $3,088.00. The order also had a checked box for the following statement: “ Terms of plea bargain are attached and incorporated herein by
reference. ” Further down on the face of the order were the following captions andCarnley v. State Page 3 amounts:
Fine: $2,500.00 Attorney Fees: $

_____ Court Costs: $308.00 Restitution $180.00
Note that the total of these amount s is $2,988.0 0. Attached to the O rder of Deferred Adjudication are several other documents including a referenced Order Imposing Conditions of Community Supervision. Included in the Order Imposing Conditions of Community Supervision are two provisions related to paym ents : f irst, community supervision fees were to be paid at the rate of $60.00 per month for a total of $3,600.00 ($60.00/month for 60 months) ; second , “Other Financial Obligations” in the amount of $61.86 per month were to be paid over 60 month s for a
total of $3,588.00, plus a $2.00 administrative fee for each payment. See T EX
. C ODE C RIM
. P ROC
. art. 102.072 ( a dministrative fee ) . The $3,588.00 total included $500 of attorney ’s
fees not otherwise included in the o rder, but instead , included only in the monthly payments agreed to be paid during the period of community supervision. The Bill of Cost s dated August 28, 2019, identif ying specific cost s , including a $25.00 time payment fee, totals $308.00. In addition to that total, the clerk notes in the B ill
that there will be an additional collection fee of 25% of any fine, court cost, and restitution that is more than 60 days past due. See T EX
. C OD E C RIM
. P ROC . art 103.0031 , repealed by Acts 2019, 8 6th Leg., ch. 606 (S.B. 891), § 15.01(2), effective September 1, 2019. Moreover,
the clerk also states in the Bill that an “additional time payment fee of $25 will be assessedCarnley v. State Page 4 if any part of the fine, co urt cost s , or restitution is paid on or after the 3 1st day after the date the judgment ” is entered. In support of this statement, the clerk cites to Texas
Government Code Section 133.103 which was renumbered , effective January 1, 2020, to
Texas Code of Criminal P rocedure article 102.030

. There was no appeal. Later , the State filed a motion to adjudicate and an amended
motion to a djudicate. The amended motion alleged Carnley violated a number of the
conditi ons of community supervision and was delinquent in the payment of costs and
fees as follows: Orig inal Pay ment Delinquent Probation Fees 3,600.00 0.00 780.00 Court Cost 308.00 0.00 308.00 Attorne y ’s Fees 500.00 0.00 316.18 Restitution 180.00 30.00 150.00 There is no need, at this juncture, to try to reconstruct or reconcile the payments and credits related to Carnley’s account. I simply note that from what we have in the record,
it was clear that Carnley paid some funds to the State but failed to make all the payments necessary to comply with his conditions of community supervision. The trial court granted the State’s amended motion and adjudicated Carnley guilty on April 29, 2021. I will call this the trial court’s first judgment since it was the first judgment adjudicating Carnley’s guilt and sentenc ing him to prison

. First Judgment
The trial court’s Judgment Adjudicating Guilt , the first judgment, the one that wasCarnley v. State Page 5 actually appealed , adjudicated Carnley guilty for possession of a controlled substance, penalty group 1, less than 1 gram , on December 31, 2018 . Carnley’s sentence of 24 months
confinement in a State Jail facility was pronounced on April 29, 2021. Th at judgment had the following captions completed as indicated: Unpaid Fines : $ 0.00 Court Appoint ed Attorney Fees : $ 0.00 Restitution Payable to: [ * ] Unpaid Court Cost s: $ 124.00 Reimbursement Fees : $ 0.00

* [ AGENT/AGENCY ( S ee special finding or order of restitution which is incorporated herein by reference.) ] The judgment summarized the terms of the previously imposed deferred adjudication order including the notation that a fine in the amount of $2,500 had been assessed. However, the judgment did not assess any fine. The trial court certified Carnley’s right to appeal. He did. Here we are.
Included in the c lerk’s record is an order to withdraw funds. Although it is labeled as Attachment A, it is not referenced in the trial court’s first judgment. In t he order , Carnley is found to be unable to pay the “court cost s , fees and/or fines and/or restitution” which “have been incurred in the amount of $124.00

. ” T hat amount is ordered to be

“ made out of ” Carnley’s inmate account

. The order is not signed but purports to be “entered and incorporated into the J udgment and S entence of this Court and p ursuant to Government Code, Section 501.014, on April 29, 2021 .” (CR 33)
A certified Bill of Cost s , dated May 19, 2021, also appears in the c lerk’s record. TheCarnley v. State Page 6 amount certified as charges is $3,989.00, all of which is also included in the balance
column . This amount includes the following:

FEE DESCRIPTION CHARGES BALANCE Local Consolidated Court Costs State Consolidated Court Costs $105.00 $185.00 $105.00 $185.00 REIMBURSEMENT FEES CHARGES BALANCE Time Payment Fee $25.00 $25.00 ASSESSED CHARGES CHARGES BALANCE Fine Crime Stoppers 10

- 200

- 412 Compensation to Victims 10

- 200

- 276 Attorney Fee Voucher Issue Capias Sheriffs Service Fee 10

- 300

- 308 Issue Subpoena $2,500.00 $50.00 $50.00 $950.00

$16.00 $100.00 $8.00 $2,500.00 $50.00 $50.00 $950.00

$16.00 $100.00 $8.00 GRAND TOTAL $3,989.00 $3,989.00 As is apparent, there is no credit for any prior payments notwithstanding the record reflects, as mentioned above, that some amounts had been paid.
T HE A PPEAL On June 28, 2021, Carnley’s appointed counsel filed an Allison brief. Allison v. State , 609 S.W .3d 624, 628 (Tex. App.

— Waco 2020, order) (per curiam) (Anders brief in support
of a motion to withdraw which also asserts merits

- based non - reversible error). Carnley filed a pro se response, and the State filed a letter waiving its right to respon d to th e merits

- based argument . By April 7, 2022, the case was ready to decide. The Abatement Order Rather than decide the appeal, the Court abated the appeal on October 19, 2022,Carnley v. State Page 7 with one justice dissenting, me. In reliance on Rule 44.4 of the Texas Rules of Appellate
Procedure , the Court stated , “We abate this appeal to the trial court to review, and if necessary, correct only the assessed mandatory court cost s .” Carnley v. State , No. 10

- 21

- 00104

- CR , *4 (Tex. App.

— Waco Oct. 19, 2022, order) (not designated for publication)

. A hearing was to occur within 30 days of the abatement order. The Court also wrote , “We further note that some of the issues involving court cost s may be remedied by the filing of a judgment nunc pro tunc in the t rial court.” Id . n. 1. The Court went on to note that a nunc pro tunc judgment was appropriate to make a correction when the court’s record does not mirror the judgment actually rendered and may be used to correct clerical errors , but not judicial omissi ons, in a trial court’s judgment. Id

. Tellingly, the Court’s abatement order failed to identify any trial court error or omission or even a perceived discrepancy between the judgment the trial court pronounced and the judgment appearing in the appellate record that the trial court signed, which is necessary for the proper applications
of Rule 44.4

. As the author of the dissent, I pointed out these and other issues to which

we w ould return. Essential to understanding the procedural development of this case is that the Court was not abating the appeal to fix an identified problem. Rather, the Court was attempting to give jurisdiction to the trial court to “review” Carnley’s complaints in his
brief and fix them if the trial court could. In this way, the Court could maybe avoid the sometimes tedious task of review and error correction, which is our duty. But wouldCarnley v. State Page 8 other problems lurk beneath this seemingly simple procedure? I thought there wo uld be. Judgment Nunc Pro Tunc After having to request an extension of time, the trial court dutifully held the ordered hearing; sort of. The State filed a motion on November 29, 2022 which state d : The form JUDG E MENT ADJUDICATING GUILT reflects that the Court Costs are $124.00 and Reimbursement Fees a s $0.00.
WHEREFORE , the State of Texas prays that the JUDGMENT in this cause be reformed to show the correct court cost s and reimbursement fees. There appears to have been no hearing othe r than possibly the trial court’s in

- chambers consideration of the foregoing described motion. There is no reporter’s record to indicate
whether there was a gathering of persons in the courtroom interested in the issues being
considered . There are no exh ibits, affidavits, or any other indicia of an evidentiary hearing. There are no briefs or memoranda to suggest the legal arguments made or responses thereto that may have occurred on remand. There is no notice of a hearing. There is, however, an order a nd also a separate judgment

— a new judgment

— a nunc pro tunc judgment. The “Order Entering Nunc Pro Tunc on Judgment” was signed and filed on November 29, 2022, the same date the motion was filed, and in its entirety states: This day came on to be hear d the State’s Motion to enter Judgment Nunc Pro Tunc in the above styled and numbered cause and the Court having heard the Motion and being satisfied that the statements therein are true, is of the opinion that said motion should be granted. It is therefo re CONSIDERED, ORDERED and ADJUDGED by the Court that the following judgment should be reformed to reflect:Carnley v. State Page 9 The form JUDGEMENT ADJUDICATING GUILT should reflect that the Court Costs are $848.00 and the Reimbursement Fees a s $55.00. and a copy of this ORDER be attached to the original Judgment and become a part thereof. The “Judgment Nunc Pro Tunc Adjudicating Guilt” purports to have been “entered” April 29, 2021 but was filed by the district clerk on December 1, 2022. It does not indicate on what date it was signed , and it provides on its face the following captions
and amounts: Unpaid Fines : $0.00 Court Appointed Attorney Fees: $0.00 Restitution Payable to: [ * ] Unpaid Court Cost: $848.00 Reimbursement Fees: $55.00

* [ AGENT/AGENCY ( S ee special finding on order of restitution which is incorporated herein by this reference.)]
Th e amounts now appearing in the judgment nunc pro tunc can be reconciled to a
Bill of Cost s dated November 29, 2022. The Bill of Cost s reflects the following captions, descriptions , and amounts:
FEE DESCRIPTION CHARGES BALANCE Local Consolidated Court Costs State Consolidated Court Costs $74.00 $133.00 $74.00 $133.00 REIMBURSEMENT FEES CHARGES BALANCE Peace Officer: Execute or Process AW, Capias $50.00 $50.00 ASSESSED CHARGES CHARGES BALANCE Juror Reimbursement Fee Judicial Support

- Criminal 12

- 1

- 2005 Indigent Defense Fund $4.00 $6.00 $2.00 $4.00 $6.00 $2.00Carnley v. State Page 10 E

- File Fee Crime Stoppers 10

- 200

- 412 Compensation to Victims 10

- 200

- 276 Court Appointed Attorney Fees 10

- 302

- 347 Commitment Issue Capias Issue Subpoena $5.00 $50.00 $50.00 $500.00 $5.00 $16.00

$8.00 $5.00 $50.00 $50.00 $500.00 $5.00 $16.00

$8.00 GRAND TOTAL $ 903 .00 $3,989.00 If total court costs, reimbursement fees, and fines are not paid within 30 days of the Judgment, an additional Time Payment Fee of $25.00 will be assessed pursuant to the applicable statues and related case law. See Texas Code of Criminal Procedure, Article 102.030. A judgment nunc pro tunc is an appealable judgment to the extent of the c ha n ges therein. See Moore v. State , 446 S.W.2d 878, 879 (Tex. Crim. App. 1969) ("The right of appeal before this Court is limited to the validity of the nunc pro tunc entry."); Cunningham v. State , 322 S.W.2d 538, 540 (1959) ("In cases such as this the right of appeal, if any, is limited to the validity of the nunc pro tunc entry. Appellant is not entitled to appeal from the conviction itself . . . .")

. An issue we will have to revisit is that the re is no certification of the right to appeal in the c lerk’s record for the appeal of the judgment nunc pro tunc. Carnley was, however, granted leave to amend the appellant’s brief by this Court. An amended brief was filed on December 5, 2022. The amend ed brief is also

an Allison brief, as was the original brief. While arguing no potentially reversible error,
the brief does present a number of non

- reversible errors, all but one of the argued errors
relate to financial assessments.Carnley v. State Page 11 Change of Counsel
- More Briefing The attorney representing Carnley in the appeal was appointed to a new district court bench in McLennan County. His motion to withdraw, due to his appointment and filed in the trial court, was granted, and new counsel was appointed. The supplemental

c lerk’s record reflecting the withdrawal and appointment also contains a Bill of Cost s dated January 4, 2023, which is the same as the November 29, 2022 , Bill of Cost s set out above. Carnley’s new appellate counsel filed a supplemental amended brief complaining about the original plea and whether it was knowing and voluntary. In the “Supplemental Amended Brief for Appellant,” new counsel specifically “adopts the ‘ I mproper financial assessments’ arguments se t forth on p gs. 33

- 41 of A ppellant’s amended brief (filed 12/5/2022).” The amended brief mentioned by new appellate counsel had been filed after the appeal had been abated and remanded to the trial court for review of the mandatory
cost s issues. Those ar e the arguments regarding the issues on costs the Court now purports to address in its opinion.
A NALYSIS OF THE P ROBLEMS Address the Errors To adequately begin to address the problems with where we are , we unfortunately must now address a number of the wrong turns taken on our way to arriving at this point. The first, and the one that could have stopped the cascading errors and problems thatCarnley v. State Page 12 followed , was the Court’s failure to merely address the alleg ed error in the trial court’s
first judgment , the Judgment Adjudicating Guilt, signed on April 29, 2021. As described above, that judgment, the one which this appeal initially attacked, assessed only $124.00 in unpaid court costs. We should have stopped right there. The Abatement Procedure You will recall that the Court abated the appeal and remanded this proceeding to the trial court in October of 2022. I dissented and argued that there was no need to abate the appeal. Specifically, I argued then, as I argue now, that: Appellant does not attack that amount [$124.00] as improper, erroneous, unsupported, or excessive. Appellant’s actual attack, as briefed, is on the cost, including a fine and attorney’s fees, included in the bill of cost. To the extent the bill of cost includes amounts for more than $124.00, such amounts cannot be collected pursuant to the trial court’s judgment because they are not assessed against the appellant in the judgment. We do not have the authority in this proceeding to increa se the amount of the cost assessed in the judgment. See Gilmore v. State , No. 12

- 15

- 00049

- CR, 2015 Tex. App. LEXIS 6964, at *3 (Tex. App.

— Tyler July 8, 2015, no pet.) (not designated for publication) (“the State does not provide, nor are we aware of, any authority that authorizes an appellate court to increase the amount of court costs assessed.”); Cuevas v. State , No. 05

- 12

- 01648

- CR, 214 Tex. App. LEXIS 4844, at *13 (Tex. App.

— Dallas May 5, 2014, no pet.) (not designated for publication) (court could not modify judgment or order the trial court to impose additional costs because record did not indicate whether defendant had paid his court costs); see also T EX
. C ODE C RIM
. P ROC
. art. 103.007 ("After a defendant has paid costs, no more costs may be charged ag ainst the defendant unless the court rules on a motion presented to the court that additional costs are due."). But see Smith v. State , 439 S.W.3d 451, 463 (Tex. App.

— Houston [1st Dist.] 1014, no pet), abrogated on other grounds by , Meadows v. State , 455 S.W.3d 166, 171 n.2 (Tex. Crim. App. 2015). Appellant concedes that more than $124.00 could have properly been assessed as court cost. I agree. Accordingly, there is no need to abate this proceeding as there is nothing that prevents the Court from dispo sing of appellant’s issues asCarnley v. State Page 13 briefed. There being no error shown to exist in the trial court’s judgment, it should be affirmed, and counsel’s motion to withdraw should be granted. There is simply no need to consume the time and resources to abate this a ppeal. Carnley v. State , No. 10

- 21

- 00104

- CR, * 1, n. 1 (Tex. App.

— Waco Oct. 19, 2022, order) (Gray , C.J., dissenting ) (not designated for publication)

. Those arguments as to why counsel’s motion to withdraw was not granted and the trial court’s judgment was not affirmed based on our inability to render a judgment more favorable to the State than the one before us then on appeal have not yet been addressed

.

— Authority
The Court’s effort to address the cost s issues outside the judgment has also caused me to focus on the absence of this Court’s authority to find and correct such errors. As I noted in my dissent in Briceno v. State , 675 S.W.3d 87 , 2023 Tex. App. LEXIS 5963 , * 26

- 28 (Tex. App.

— Waco Aug. 9, 2023, no pet. ) (Gray, C.J. dissenting) , there is a question about our authority to find error in , and order a correction of , a bill of cost s as opposed to an error in the trial court’s judgment. I noted that this C ourt’s effort to order a correction of
the Bill of Cost s,

... 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.

— W aco 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 c osts 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 redactedCarnley v. State Page 14 the specific case informa tion 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 aut hority 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 ana lysis 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 T EX
. G OV ' T C ODE §§ 22.201(k), 22.221(a), (b); In re Simmonds , 271 S.W.3d 874, 879 (Tex. App.

— Waco 2008, orig. 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”). Id . *26

- 27. Moreover, the rules limit the type of judgments we are authorized to render and modifying a bill of cost s is not one of them. See T EX
. R. A PP
. P . 4 3.2 . And critical to this part of the analysis is that we must find the statute which grants us the authority to
take the action we do. See Abbott v. State , 271 S.W.3d 694 (Tex. Crim. App. 2008)

. In an effort to address how we have the authority to review the work of the district
clerk and order th e clerk to correct the B ill of C osts without an allegation of error committed by the trial court, the Court in Briceno relied upon concepts the Court of Criminal Appeals ha d already rejected. When this Court previously tried to review an
order for which we had no jurisdiction to review, the Court of Criminal Appeals said:Carnley v. State Page 15 The court of appeals decided that it had jurisdiction to decide the merits of appellant's appeal from the trial court's post

- judgment order denying his time

- credit motion, because there was no "statute or rule precludin g" the appeal. See Abbott , 245 S.W.3d at 20. This, however, is not the standard for determining jurisdiction. The standard for determining jurisdiction is not whether the appeal is precluded by law, but whether the appeal is authorized by law. See T EX
. C ONST . art. V, § 6(a), (providing that courts of appeals "shall have appellate jurisdiction co

- extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate juri sdiction, under such restrictions and regulations as may be prescribed by law" and "[s]aid courts shall have such other jurisdiction, original and appellate, as may be prescribed by law"); Article 44.02, T EX
. C ODE C RIM
. P ROC ., ("[a] defendant in any crimin al action has the right of appeal under the rules hereinafter prescribed"); T EX
. R. A PP
. P ROC . 25.2(a)(2) (a defendant "has the right of appeal under Code of Criminal Procedure article 44.02 and these rules" in every case in which the trial court "enters a judgment of guilt or other appealable order"); McIntosh v. State , 110 S.W.3d 51, 52 (Tex. App.

-- Waco 2002, no pet.) (a defendant has right to appeal from a final judgment of conviction or when "expressly granted by law") (internal quotes omitted); Abbott, 245 S.W.3d at 23 (Gray, J., dissenting) (courts of appeals have no appellate jurisdiction in criminal matters "absent a specific authorization by law"). Abbott v. State , 271 S.W.3d 694, 696

- 97 (Tex. Crim. App. 2008)

. See also Staley v. State , 233
S.W.3d 337 (Tex. Crim. App. 2007) (re viewing a Fort Worth Court of Appeals ’ jurisdiction
decision ) ; Apolinar v. State , 820 S.W.2d 792 (Tex. Crim. App. 1991) (re viewing a San Antonio Court of Appeals ’ jurisdiction decision ).

— Rule 44.4 But my complaint about the use of the abatement procedure did not stop with jurisdiction arguments . As I explained in Welch v. State , 668 S.W.3d 54, 57

- 59 (Tex. App.

— Waco 2022, o rder) (Gray, C.J., dissenting) , which was issued one week before andCarnley v. State Page 16 incorporated in to my dissent to the abatement order in this appeal , the fundamental basis
for the use of the abatement procedure was missing. With the foundation missing, the procedure was built on shifting sand. And it has shifted. The foundation for the procedure articulated by the Court i s that we should not reverse an appeal for a trial court ’s error if the error could be corrected and the appeal could then proceed. The foundation for that argument is Texas Rule of Appellate
Proc edure 44.4. The R ule provides:
44.4. Remediable Error of the Trial Court (a) Generally . A court of appeals 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. (b) Court of Appeals Direction if Error Remediable . If the circumstances described in (a) exist, the court of appeals must direct the trial co urt to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.
T EX
. R. A PP
. P . 44.4.
To use the R ule properly, the condition s precedent must be present. Those
conditions are summarized in the title and then described, or set out, in sub section (a) of
the R ule. As the title is captioned, the ac t or failure/refusal to act by the trial court must be “remediable” and it must be “error.” Subsection (a) of the Rule sets out the circumstance s that must exist for use of the
R ule. It can be broken down into elements like a penal statute or a cause of action asCarnley v. State Page 17 follows:
1. The trial court’s erroneous a. action; b. failure to act; or c. refusal to act 2. Prevents the proper presentation of a case on appeal

. Un less both conditions precedent are met, the appellate court cannot comply with

s ubs ection (b) of the R ule , and thus , use of the R ule is improper.
The Rule has been properly utilized in a number of recurring fact patterns:
1. Failure or refusal to make findings of fact and conclusions of law, see State v. Cullen , 195 S.W.3d 696 (Tex. Crim. App. 2006) ; 2. Failure to pronounce sentencing in the presence of the defendant, Keys v. State , 340 S.W.3d 526, 529 (Tex. App.

— Texarkana 2011, no pet.) and Meacham v. State , 273 S.W.3d 803, 806 (Tex. App.

— Houston [14th Dist.] 2008, no pet.) ; 3. Variation in oral and written ruling on motion to quash, Henery v. State , 364 S.W.3d 915 (Tex. Crim. App. 2012) ; 4. Refusal to permit the making of an offer of proof or bill of exception, Spence v. State , 758 S.W.2d 597, 599

- 600 (Tex. Crim. App. 1988) ; and 5. Failure to conduct a proper Batson hearing, Hutchinson v. State , 86 S.W.3d 636, 638 n.1 (Tex. Crim. App. 2002).
T o understand the proper use of the R ule and how it is designed to work, let us examine an all too common fact pattern to which it applies and is thus properly and efficiently utilized

– the trial court’s failure or refusal to make findings of fact. In bot h civil and criminal cases, under appropriate circumstances, a party is entitled to have the trial court set out in writing findings of fact. See T EX
. R. C IV
. P. 296 (civil), Sandoval v. State , 665 S.W.3d 496, 520 (Tex. Crim. App. 2022 ) (voluntariness of confession) ; State v. Cullen , 195 S.W.3d 696, 698

- 99 (Tex. Crim. App. 2006) ( on request of losing party o n motion toCarnley v. State Page 18 suppress ) . A request must be properly made. 1 T EX
. R. C IV
. P. 296 , 297 ; Cherne Indus., Inc. v. Magallanes , 763 S.W.2d 768, 772 (Tex. 1989)

. See State v. Cullen , 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) . Like most rights, it can be waived by the failure to properly assert it. See Las Vegas Pecan & Cattle Co. v. Zavala County , 682 S.W.2d 254, 255 (Tex. 1984) (untimely notice of past due findings and conclusions waive right to complain of trial court's failure to file findings and conclusions)

. So g enerally, t o properly assert the right, the request
must be in regard to a district or county court case conducte d without a jury or a n order

or determination for which findings of fact are appropriate, such as in certain criminal
matters, and the request must be timely made. If the request is properly made, the trial court errs in not making the findings

. See State v. Cullen , 195 S.W.3d 696 (Tex. Crim. App. 2006) ; Cherne Indus., Inc. v. Magallanes , 763 S.W.2d 768, 772 (Tex. 1989)

. Thus, the first condition precedent to application of the R ule is present, the failure or refusal to make findings when the party is entitled to them, and they have been properly requested or necessarily required

. But not all errors lead to the same remedy. T his is because not all errors cause the same problem or result. Frequently, not having the trial court’s findings do es not prevent the party from a proper presentation of the case on appeal. See Graham Cent. Station, Inc.
v. Peña , 442 S.W.3d 261, 263 (Te x. 2014)). When the trial court fails or refuses to make

1 In some situations, such as a question regarding the voluntariness of a confession, written findings are required even if not requested. See Sandoval v. State , 665 S.W.3d 496, 520 (Tex. Crim. App. 2022)

.Carnley v. State Page 19 findings, the appellant may nevertheless be able to present the case on appeal because a full record of the proceeding was made and the nature of the error being argued does not rely upon a specific finding of the trial court. The important observation to make is that the error, the failure or refusal to make findings, may not prevent the proper presentation on appeal. The procedure is profoundly different when the trial court errs by failin g to hold an evidentiary hearing on a motion for new trial. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) . Once it is determined that the trial court erred by failing to hold an evidentiary hearing on a motion for new trial, the appeal i s not abated for the hearing and subsequently reinstated. Rather, the issue is sustained and the case is remanded to the trial court. The appeal is over because the trial court may alter the judgment or grant a new trial and the appellate timetable and p rocess begins anew. 2 See McIntire v. State , 698 S.W.2d 652, 662 (Tex. Crim. App. 1985)

. S ee also Reyes v. State , 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) ; Price v. State , 826 S.W.2d 947, 948 (Tex. Crim. App. 1992) ; Barnett
v. State , 76 S.W.3d 739, 74 2 (Tex. App.

— Waco 2002, pet. ref'd) ; Mendoza v. State , 935 S.W.2d 501, 504 (Tex. App.

— Waco 1996, no pet.). Thus, when a trial court fails to hold an evidentiary hearing on a motion for new trial, the R ule cannot be properly used to simply allow the trial court to conduct the

2 This is the same procedure for an error in ordered restitution : t he appeal is remanded to the trial court for a restitution hearing and the appellate process starts anew after the hearing. See Miller v. State , 343 S.W.3d 499 , 504 (Tex. App.

— Waco 2011 , pe t. ref’d )

.Carnley v. State Page 20 necessary hearing because the entire course of the proceeding could change as a result of that hearing. Indeed, I question whether this R ule, Rule 44.4, can be properly used i n any situation where the result could be a modification b y the trial court of the trial court’s prior judgment which is the subject of the then pending appeal. This brings us back to this appeal. Were the conditions precedent met? Absolutely
not. Carnley had no trouble briefing the alleged errors in the trial court’s judgment. Carnley did not assert or argue there was any issue for which a proper presentation on appeal could not be made. That fact alone makes the Court’s use of the R ule and abatement pro cedure improper. Moreover, the R ule requires the Court to identify “the trial court’s erroneous
action or failure or refusal to act.” The Court was unable to identify any trial court error,
failure , or refusal. Rather , the Court orde red that the “trial court shall conduct a hearing on appellant’s court

- cost challenges...

. ” Carnley v. State , No. 10

- 21

- 00104

- CR, * 5 (Tex. App.

— Waco Oct. 19, 2022, order) (not designated for publication)

. Carnley and Welch have not been the only cases in which the abatement of the appeal and remand to the trial court to review court cost s has been u s ed . But it has not been consistently used in every appeal in which court cost s is raised as an issue. The Court has subsequently attempted to justify its inconsistent use of the procedure. In Brice n o, the Court explained , “Thus , the Court can, but is not obligated to, abate and remand the appeal to the trial court for reconsideration of court costs that a reCarnley v. State Page 21 so confusing as to prevent the proper presentation of the issue in this C ourt.” Briceno v.
State , 675 S.W.3d 87 , 2023 Tex. App. LEXIS 5963, at *18 (Tex. App.

— Waco Aug. 9, 2023, no pet ). First, I note that being “so confusing” appears nowhere in R ule 44.4 as a condition precedent to remand an issue to the trial court. And while I have recognized the issue of
court cost s is already pretty “gnarly,” that alone does not meet the r equirement of the
R ule. Second, just because an issue is confusing does not make it a proper basis to sen d it back to the trial court for “reconsideration.” Under some very unique and specific
circumstances , we have been authorized to allow a trial court to clarify a jurisdictional issue, specifically where the issue is dependent upon a determination of the trial court’s intent, but not to merely “reconsider” an issue that was being challenged on appeal. See Am. Home Prods. Corp. v. Clark , 3 S.W.3d 57 (Tex. App.

— Waco 1999) , aff'd , 38 S.W.3d 92 ( Tex. 2000) (appe al abated to allow trial court to clarify order concerning venue/joinder
claims ; order affirmed by Texas Supreme Court )

. See also Walston v. Lockhart , 36 S.W.3d 278 (Tex. App.

— Waco 2001, order ) ( inclusion of Mother Hubbard clause was remedia ble error; appeal abated to correct error)

. If we could abate every appeal because the issues briefed are confusing, we may never dispose of another appeal. Most cases are appealed for the very reason that the issues are confusing. The facts can be poorly tr ied, poorly argued, and poorly summarized. The law can be complex, conflicting, and less than clear. Together, whenCarnley v. State Page 22 presented in a brief, the law and the facts can be very confusing and could, in virtually every case, be characterized as preventing a pro per presentation of the case to the court of appeals. That has never been a justification for sending an appeal or an issue back to the trial court to review its decision. Ultimately, if the appellant is unable to convince the appellate court that an err or made by the trial court adversely affected the judgment, the appellant loses

– confused or not. And finally, the abatement/remand procedure in these court cost s cases is not being used so that the trial court can “make findings that comply with a partic ular statutory requirement” as suggested by the Court in Briceno

. Briceno v. State , 675 S.W.3d
87 , 2023 Tex. App. LEXIS 5963, at *18 (Tex. App.

— Waco Aug. 9, 2023, no pet ). Rather,
the abatement order in this case states , “We abate this appeal to the trial court to review, and if necessary, correct only the assessed mandatory court costs.” Carnley v. State , No.
10

- 21

- 00104

- CR, *4 (Tex. App.

— Waco Oct. 19, 2022, order) (not designated for publication )

. Thus, not only is the “trial court’s erroneous act ion or failure or refusal to act” not identified, the scope of the remand is for a general “review , ” and the ability to correct is limited to “assessed mandatory court cost s .” To this limitation , we will later
return.
R ule 44.4 does not authorize this C ou rt to give jurisdiction to the trial court for a general review of “the assessed mandatory court cost s .” The R ule requires trial court

error. See T EX
. R. A PP
. P. 44.4(a)(1). A s I stated in my dissent to the abatement order inCarnley v. State Page 23 Welch v. State , which I incorporated in my Dissent to Abatement Order i n this case : The Court apparently has not determined that there is an error in the judgment. Abatement Order at 4 (“ ...we abate this appeal to the trial court to review and, if necessary , correct o nly the assessed mandatory court cost.”) (emphasis added). The Court certainly gives no indication of the error, if any, that is present in the judgment to be addressed by the trial court at the abatement hearing. And because the error is not identified , the Court is thus unable to comply with the requirement in the rule which instructs the Court to “ ...direct the trial court to correct the error. ” T EX
. R. A PP
. P. 44.4 (b) (emphasis added). This leads me to conclude that any allegation of error in the as sessment of mandatory court cost will be subjected to this unprecedented procedure, or at the very least, only the Court will be able to determine those issues “where court cost errors can be accurately determined from the existing record.” Abatement Order at 4, fn 2. Welch v. State , 668 S.W.3d 54, 57 (Tex. App.

— Waco 2022, order) (Gray, C.J., dissenting )
In Welch , a proceeding on the same procedural trajectory as Carnley , the appellant tried to stop the abatement and remand to the trial co urt by filing a petition for a writ of
mandamus. See In re Welch , WR

- 94,262

- 01 (Tex. Crim. App. Nov. 2, 2022) (denied without written order)

. 3 Welch’s efforts to obtain mandamus relief failed. Id

. We do not know why. A possible reason is that the errors might fix themselves with further development
in this Court and , t hus , become moot. But the more likely justification for the summary denial by the Court of Criminal Appeals is that the errors could be corrected on petition for discretionary review . Thus, without the course correction that a writ of mandamus might have provided , both Welch and Carnley soldiered on . S o must we because those

3 Welch arose out of the same county as Carnley , and both appellants were initially represented by the same appellate counsel.Carnley v. State Page 24 issues now impact th is Court’s opinion and judgment.
O RDER AND N EW J UDGMENT As described in the procedural background above, it does not appear from the appellate record that there was any type of in

- person hearing on the abatement and remand to the trial court. But both an order and a new judgment were rendered

. Let u s begin th is s ection with the simplest of issues regarding the order and new judgment: c an we address any issue in this appeal as it relates to that judgment? Certification of Right to Appeal Nunc Pro Tunc Judgment The record in this appeal does not “include th e trial court’s certification of the defendant’s right of appeal” of th e judgment nunc pro tunc

. T EX
. R. A PP
. P. 25.2 (d). As the Rules of Appellate Procedure dictate, “The trial court shall enter a certification of the defendant’s right of appeal each ti me it enters a judgment of guilt or other appeal able
order . . . . ” Id

. (a)(2). Without the required certification, we have no authority to address any issue that is raised based upon the content of that document. See id. 25.2(d) . Thus, “[t] he appeal must be dismissed if a certification that shows the defendant has the right of appe al has not been made part of the record under these rules." Id

. ; Dears v. State , 154 S.W.3d 610, 613 (Tex. Crim. App. 2005)

. Jurisdiction to Review Nunc Pro Tunc Judgment
Even i f we were to obtain a certification of the right to appeal regarding that judgment, our ability to address the issues w ould not fare any better. I would begin anCarnley v. State Page 25 analysis by a determination of what , exactly, the new judgment is

. This Court has recently summarized the nunc pro tunc procedure in addressing a
pos t

- judgment motion for such a judgment. In re Cornett , No s . 10

- 22

- 00191

- CR through
10

- 22

- 00203

- CR, 2022 Tex. App. LEXIS 4470, at *2 (Tex. App.

— Waco June 29, 2022, orig. proceeding) : The purpose of a nunc pro tunc judgment is to provide a method for trial c ourts to correct the record when there is a discrepancy between the judgment as pronounced in court and the judgment reflected in the record. Blanton v. State, 369 S.W.2d 3d 894, 897

- 98 (Tex. Crim App. 2012). The corrections must reflect the judgment that was actually rendered but that for some reason was not accurately entered into the record at the time of the judgment. Id. at 898. Further, nunc pro tunc jud gments are limited to clerical mistakes or errors in a judgment; not for errors involving judicial reasoning. Id.; see State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim App. 1994) (applying former Texas Rule of Appellate Procedure 36); Jackson v. State, 362 S.W.3d 817, 819

- 20 (Tex. App.

— Amarillo 2012, no pet.). There is nothing in this record to suggest respondent would be correcting a clerical mistake if respondent granted relator’s motion. See Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim. App. 1984) (t here must be proof that the proposed judgment was actually rendered or pronounced at an earlier time )

. Id . *2

- 3

. If the new judgment is really a j udgment nunc pro tunc , only the cha n ges made to this judgment from the prior judgment may be appealed. Se e Blanton v. State , 369 S.W.3d 894, 900, 904 (Tex. Crim. App. 2012) ; Moore v. State , 446 S.W.2d 878, 879 (Tex. Crim. App. 1969)

. But maybe this document is labeled incorrectly ; maybe it is not a judgment nunc pro tunc at all. A judgment nunc pro tunc is properly used when the initial judgment does not conform to the actual judgment that was rendered by the trial court. See BlantonCarnley v. State Page 26 v. State , 369 S.W.3d 894, 897

- 98 (Tex. Crim. App. 2012). When properly appealed, we can review a judgment nunc pro tunc when there is some scrivener’s error in drafting the
written judgment , in other words , when a clerical error is made. Id

. As I warned in my dissent to the abatement order, this is not a case in which “the record will support a
determination that the trial court rendered judgment regarding cost other than what appears in the judgment as a result of a clerical error.” Welch v. State , 668 S.W.3d 54, 58 n.3 (Tex. App.

— Waco 2022, no pet.) (Gray, C.J., dissenting) ( incorporated by reference in Carnley v. State , No. 10

- 21

- 00104

- CR, * 1 (Tex. App.

— Waco Oct. 19, 2022, order) (Gray, C.J., dissenting) (not designated for publication) )

. The fact that the increased award of costs and fees was not a clerical error is borne

o ut by three documents. The first is the abatement order. The Court did not abate the appeal and remand the proceeding to the trial court to correct an identified clerical error in the judgment. Rather, the trial court was ordered to “review and, if nece ssary, correct only the assessed mandatory court cost s .” Carnley v. State , No. 10

- 21

- 00104

- CR , *4 (Tex. App.

— Waco Oct. 19, 2022, order) (not designated for publication )

. The second document that confirms the increased award of costs and fees was not a clerical error is the Motion to Enter Nunc Pro Tunc filed by the State. The motion first

re cites that : ” T he form JUDG E MENT ADJUDICATING GUILT reflects that the C ourt
C osts are $124.00 and the R eimbursement F ees as $0.00. ” The motion then prays “that
the JUDGMENT in this cause be reformed to show the correct costs and reimbursementCarnley v. State Page 27 fees.” The motion does not reflect or suggest that originally, there was any intention or action by the trial court to render a judgment for any amount other than $1 24.00. Rather, the motion suggests that the amount for which the judgment was r endered was now believed to be incorrect and should be changed “to show the correct” amount

. In every sense of meaning, this was nothing more than a motion to correct a percei ved trial court error in determining the amount of court cost s assessed

— a motion to review the amount, determine the correct amount, and correct the amount in the judgment. This motion was
not requesting correct ion of a clerical/s crivener ’s mistake in transcribing the trial court’s first judgment. The third document which shows that this attempted nunc pro tunc judgment
does not correct clerical errors is entitled , “Order Entering Nunc Pro Tunc on Judgment.”
This O rder reads in its entirety as follows: ORDER ENTERING NUNC PRO TUNC ON JUDGMENT This day came on to be heard the State’s Motion to enter Judgment Nunc Pro Tunc in the above styled and numbered cause and the Court having heard the Motion and being satisfied that the statements therein are true, is of the opinion that said motion should be granted. It is therefore CONSIDERED, ORDERED and ADJUDGED by the Court that the following judgment should be reformed to reflect: The form JUDGEMENT ADJUDICATING GUILT should reflect that the Court Costs are $848.00 and the Reimbursement Fees a s $55.00. and a copy of this ORDER be attached to the original Judgment and become a part thereof. (Emphasis in original) The Order does not reflect that it is changing amounts in the original judgment beca useCarnley v. State Page 28 they were entered incorrectly as a result of a clerical error. Rather, the judgment is being
“reformed” to “reflect” different amounts based on the “statements” in the motion. Based on the foregoing, it is clear that the changes being made to the judgment were not necessitated by a clerical error, and it is therefore improper to use a nunc pro tunc judgment or procedure to modify the judgment

. But even if the nunc pro tunc jud gment was properly rendered with new/different amounts of court costs, and even if the trial court prepares a certification of the right to appeal, there remains the fundamental problem that we have no jurisdiction to review the changes made via the execut ion of the nunc pro tunc judgment. No timely notice of appeal was filed to invoke our jurisdiction to review the changes made in the nunc pro tunc judgment. As a separately appealable order, a timely notice of appeal is required to invoke our jurisdictio n. See Williams v. State , 603 S.W.3d 439, 446

- 4 8 (Tex. Crim. App. 2020) ; Smith v. State, 559 S.W.3d 527, 535 (Tex. Crim. 2018) (“other examples of appealable orders that require a notice of appeal include: an order entering a nunc pro tunc judgment...

. ”)

. Changes to Judgment Exceed Scope of Abatement Order This is probably the appropriate time to discuss that the changes to the judgment
exceed the permitted scope of the abatement order. Recall that the Court’s order abated “this appeal to the trial cou rt to review, and if necessary, correct only the assessed mandatory court cost s .” Carnley v. State , No. 10

- 21

- 00104

- CR, *4 (Tex. App.

— Waco Oct.Carnley v. State Page 29 19, 2022, order) (not designated for publication) . The trial court’s ability to modify the judgment is limited to the authorization granted by the appellate court in the abatement
order

. See Lewis v. State , 711 S.W.2d 41, 43

- 44 (Tex. Crim. App. 1986) ; Nava v. State , 480 S.W.3d 759, 763 (Tex. App.

— Houston [1st Dist.] 2015), pet. ref'd)

. Assuming the validi ty of the abatement order, the trial court was authorized “ to review, and if necessary, correct ONLY the assessed mandatory court cost.” Carnley v. State , No. 10

- 21

- 00104

- CR, *4 (Tex. App.

— Waco Oct. 19, 2022, order) (not designated for publication). (Emphasis added).
W HICH J UDGMENT FOR W HICH C OST FROM W HICH S TATUTE 4 We now turn to a rather difficult issue, made even more complicated by a recent opinion from this Court: what mandatory court costs could be properly assessed? That simple question leads to another: what costs statute/statutes is/are applicable? And on e should assume those question s are easily answered; but they are not. To understand where this is headed, it is necessary to first be aware of and understand the Court’s holding in Bradshaw

. Bradshaw v. State , 675 S.W.3d 78 , 2023 Tex. App. LEXIS 5749 (T ex. App.

— Waco Aug. 2, 2023, pet. filed )

. In Bradshaw , the Court held
that the cost s statute in effect on the “date the defendant is convicted of the offense” is the applicable statute to determine the assessment of costs

. Id . at *12

- 13 (citing T EX
. G OV ’ T C ODE § 51.608 (effective June 14, 2013) )

.

4 Of course, we do not need to go down this path if I am correct that we erred when we did not affirm the judgment , as opposed to the B ill of C osts, that assessed $12 4 .00 in cost s — which no one attacked

.Carnley v. State Page 30 The dispute in Bradshaw was a bit complex because the offense Bradshaw had been convicted of occurred on or about July 8, 2019. In that yea r, the legislature revised some
of the statutes that authorize d cost s to be assessed in criminal cases. The effective date of the statute was January 1, 2020, and the implementation provision provided: “ An offense
committed before the effective date of t his Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose

. ” § 5.01, 2019 T EX
. G EN L AWS 3982, 4035

- 36. The Bradshaw C ourt held that , notwithstanding the implementation language set out above , section 51.608 of the Texas Gov ernment Code
dictated the applicable cost s statute as the one in effect on the date Bradshaw was
convicted

— that is, the date the trial court signed the judgment of c onviction

— October 20, 2022 , not the date Bradshaw committed the offense, July 8, 2019. In this proceeding, the following dates may be significant:
Date of offense December 30, 2018 Bill of Cost s August 28, 2019 Order of Deferred Adjudication August 29, 2019 Order Imposing Condition of Community Supervision August 29, 2019 Judgment Adjudicating Guilt April 21, 2021 Bill of Cost s November 29, 2022 Judgment Nunc Pro Tunc Adjudicating Guilt December 1, 2022 Bill of Cost s January 4, 2023 In my dissent to Bradshaw , I commented that “ court cost s is already a gnarly issue ,” and
the Court’s holding added to it. Bradshaw v. State , 675 S.W.3d 78 , 2023 Tex. App. LEXIS 5749, at *17 (Tex. App.

— Waco Aug. 2, 2023, pe t. filed )

. F or purposes of assessing costs pursuant to Bradshaw , t he initial question is : what is the proper date to use as the date ofCarnley v. State Page 31 conviction? In some situations , the date a defendant pleads guilty but is p laced on deferred adjudication community supervision is considered a conviction. See e.g. Ex parte Powell , 570 S.W.3d 417, 419 (Tex. App.

— Waco 2019, no pet. ) ( deferred adjudication in a sexual assault case is considered final conviction if defendant commits an other sexual assault)

. On August 29, 2019, Carnley entered into a plea agreement, pled guilty, and
was p laced on deferred adjudication community supervision . The August 28, 2019, Bill
of Cost s appears to have been the basis for the amount of costs included in the Order Imposing Conditions of Community Supervision and the Order of Deferred Adjudication. So, the costs were “assessed” at that time. Moreover, the “costs” assessed , plus attorney’s fees, at that time were also the costs used for the computation of monthly payments for the community supervision fees . Finally, at least some payments toward those costs had been made prior to the time Carnley’s community supervision was
revoked and his guilt adjudicated. But, according to the Court’s holding in Bradshaw , because the date the deferred adjudication order was signed might not be considered the date of Carnley’s conviction, we may have to use another date, and , thus , determine statutory cost s based on that other date. The next possible date we would look to would be April 29, 2021, the date of the Judgment Adjudicating Guilt. Under Bradshaw, that date might be the date of conviction ; and it is certainly the date of the judgment which provided the basis for this appeal. That judgment assesses $124.00 of “ Unpaid Court Cost s . ” But the Bill of Cost s dated May 19,Carnley v. State Page 32 2021 totals $3,989.00 of fines, attorney fees, and court costs including L ocal Consolidated
Court Cost s of $105.00 and State Consolidated Court Cost of $185.00. Under Bradshaw , th e amounts listed would be the proper amounts for those specific types of costs if May 19, 20 21 is considered the date of Carnley’s conviction and the Court’s interpretation of
the statute in Bradshaw is determined to be correct ( a petition for discretionary review is pending). However, after the October 17, 2022 abatement order, the trial court signed the Order Entering Nunc Pro Tunc on Judgment on Nov ember 29, 2022, and , although dated April 29, 20 21 , yet file stamped on December 1, 2022 , the Judgment Nunc Pro Tunc Adjudicating Guilt includ ed costs in the amount of $848 .00

. In the new judgment , for
which I again note, we do not have a certification of the right to appeal or a notice of appeal but which is the judgment being addressed in the opinion, court cost s and reimbursement fees totaling $903.00 are assessed . This assessment is consistent with the
certified Bill of Cost s dated November 29, 2022. However, the November 29, 2022
certified Bill of Cost s contains amounts for the Local Consolidated Court Cost s and State
Consolidated Court Cost s which are l ess than th ose costs assessed on May 19, 2021. The November 29, 2022 certified Bill of Cost s reflects Local Consolidated Court Cost s of $74.00
and State Consolidated Court Cost s of $133 .00 , which are the amount s for offenses occurring before January 1, 2021. Thus, the amounts being aff irmed in the Court’sCarnley v. State Page 33 opinion, appear to be inconsistent with the Court’s recent holding in Bradshaw

. 5 Like I said, its gnarly. There are also other costs now included in the judgment nunc pro tunc (and if
relevant , the Bill of Cost s ) that were not included in the original judgment. The one that troubles me the most, because the nature of the expense has been the subject of so many appeals, is attorney ’s fees. The December 1, 2022 judgment nunc pro tunc and the November 29, 2022 Bill of Cost s include $500.00 in court appointed attorney ’s fees (apparently from the original plea proceeding)

. The problem with now including attorney ’s fees as part of court costs is

— again

— the scope of the C ourt’s remand in t he
abatement order : “We abate this appeal to the trial court to review, and if necessary, correct only the assessed mandatory court cost s .” Carnley v. State , No. 10

- 21

- 00104

- CR, *4 (Tex. App.

— Waco Oct. 19, 2022, order) (not designated for publication)

. Attorney ’s fees are not mandatory court cost s and as such, it was beyond the trial court’s jurisdiction on remand, as limited by the abatement order, to add attorney’s fees to court costs even if it otherwise would have been proper. 6

5 Of course, part of the problem when we raise an issu e and decide it without it having been an issue raised and brief ed by the parties, as the Court did in Bradshaw , is that our holding on the issue is dicta. Sanders v. State , 158 S.W. 291, 295 (Tex. Crim. App. 1913). Even if we stumble along and get it right, it would be wrong because we should not be addressing it in the first place. And as jurists, we are deprived of the research, insight, arguments, and factual development that could be provided by the parties or Amicus Curie on the subject.

6 There may be other problems with now trying to include attorney’s fees from the original community supervision order. See Wiley v. State , 410 S.W.3d 313 (Tex. Crim. App. 2013); Mayer v. State , 309 S.W.3d 552 (Tex. Crim. App. 2010)

.Carnley v. State Page 34 It also appears the trial court included other costs in its December 1, 2022 nunc pro tunc judgment which are not part of “mandatory court costs.” In addition to the $24.00
of cost s rejected by th is Court, it would appear that at least the $55.00 of “Reim bursement
Fees ” and possibly other “assessed charges” included in the judgment are beyond the scope of the abatement order as well.
W ORTH M ENTIONING There is much more that I could write to show how this C ourt’s abatement procedure has created the antithe sis of what Judge Cochran advocated in her concurring opinion in Johnson

. See Johnson v. State , 423 S.W.3d 385, 396 (Tex. Crim. App. 2014) (Cochran, J., concurring) (cost issue best addressed on direct appeal ). But, I will part with

a reference to a statute with which I have yet to see compliance by a trial court

. (This does not mean no trial court in Texas has ever complied with this statute

— I simply have not seen any). The legislature is not deaf to the many problems that have bee n created by the assessment of court cost s and the substantial resources expended in collection efforts for court costs. Apparently, recognizing the problem, the legislature p assed T exas C ode of C riminal P rocedure article 42.15 (a

- 1). The current version provides: (a

- 1) Notwithstanding any other provision of this article, during or immediately after imposing a sentence in a case in which the defendant entered a plea in open court as provided by Article 27.13, 27.14(a), or 27.16(a), a court shall inquire o n the record whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs. If the court determines that the defendant does not have sufficient resources or income to immediately pay all or part of the fine and costs, the court shall determine whether the fine and costs should be:Carnley v. State Page 35 (1) subject to Subsection (c), required to be paid at some later date or in a specified portion at designated intervals; (2) discharged by performing community service under, as applicable, Article 43.09(f), Article 45.049, Article 45.0492, as added by Chapter 227 (H.B. 350), Acts of the 82 nd Legislature, Regular Session, 2011 , or Article 45.0492, as added by Chapter 777 (H.B. 1964), Acts of the 82 nd Legislature, Regular Session, 2011 ; (3) waived in full or in part under Article 43.091 or 45.0491; or (4) satisfied through any combination of methods under Subdivisions (1)

— (3).
T EX
. C ODE C RIM
. P ROC
. a rt. 42.15 (a

- 1) (effective until January 1, 2025)

. As of the writing of this dissent, however, I have not seen a single case in which the trial court has complied with this statutory requirement. Compliance with it could eliminate the needless expenditure of resources to appeal court costs assessed that in a ll probability will never be collected. Moreover, this may be the type of trial court error for which an abatement procedure could be appropriate , especially in light of another statute permit ting the trial court’s reconsideration of fines and court costs upon notice the
defendant has difficulty paying the fines and costs assessed

. 7 T EX
. C ODE C RIM
. P ROC
. a rt.
43.035. But I will await the time with patience until that issue is properly raised and

7 It appears to me that it would be consistent with existing case law and statutes to limit counsel’s and the intermediate appellate court’s duty to a review of the actual dollar amount of costs included in the judgment, if any. Errors in the bill of costs have a full set of proced ural tools for correction, inability to pay , and collection methods using procedures that would not impede the efficient processing of criminal appeals whether on the merits or in Anders cases . See e.g

. T EX
. C ODE C RIM
. P ROC . art. 42.15 (a

- 1) (effective un til January 1, 2025) ( post

- sentencing hearing regarding ability to pay costs) ; T EX
. C ODE C RIM
. P ROC . art. 43.035 (relief when payment of costs is difficult) ; T EX
. C ODE C RIM
. P ROC . art. 103.008 ( correction of costs) ; Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ( frivolous appeals) ; Dulin v. State , 620 S.W.3d 129 (Tex. Crim. App. 2021) (costs not due until judgment is final) ; Harrell v. State , 286 S.W.3d 315 (Tex. 2009) ( regarding challenging costs withdrawn from inmate accounts) ; Cummins v. State , 646 S.W.3d 605 (Tex. App.

— Waco 2022, pet. ref'd) (procedure for filing Anders briefs and merits briefs).Carnley v. State Page 36 briefed by the parties in an appeal as opposed to raising and deciding it sua sponte

. See Bradshaw v. State , 675 S.W.3d 78 , 2023 Tex. App. LEXIS 5749, at *15 (Tex. App.

— Waco Aug. 2, 2023, pet. filed ) (Court addressing a cost issue not raised or briefed by the parties )

. C ONCLUSION In summary and in conclusion, I dissent for the following reasons:
1. There was no need to abate the appeal and remand the proceeding to the trial court to review court costs.
2. The abatement procedure does not comply with the requirements of T EX
. R. A PP
. P. 44. 4 , and we had no authority to abate the appeal and remand the proceeding to the trial court for a general review of an unspecified error regarding court costs.
3. We have no authority to review the costs as assessed in the pos t

- abatement nunc pro tunc order and judgment because

a. the costs assessed by the trial court exceeded the scope of the remand order; b. we have no certification of the right to appeal the nunc pro tunc judgme nt; c. we do not have a timely notice of appeal of the nunc pro tunc judgment.
4. We have no authority to affirm an increase in the amount of court costs originally assessed.
5. We have no authority to order a modification of a certified bill of cost s , particularly when there is no error in trial court’s judgment. (Moreover , a ny error in the Bill of Cost s is harmless to the extent that the error does not impact the amount assessed in the judgment

. ) For the foregoing reasons, I would affirm the trial court’s judgment that is the properCarnley v. State Page 37 s ubject of this appeal, which is the April 29, 2021 Judgment Adjudicating Guilt. 8

TOM GRAY Chief Justice Dissent delivered and filed November 30 , 2023

8 I have concluded that the Court erred in issuing the abatement order. I have also concluded the trial court lacked the authority to issue a judgment nunc pro tunc in reliance on that abatement order. Accordingly, I have concluded that the judgment properly before us for review is the April 2 9 , 2021, Judgment Adjudicating Guilt which assesses $124.00 in court costs. I not e, however, that if I am incorrect in my conclusions about whether the trial court could properly issue a judgment nunc pro tunc which modifies the assessment of court costs, we must dismiss Carnley’s complaints in this appeal regarding court costs because those assessments have become moot due to the issuance of the nunc pro tunc judgment. Additionally, this appeal is not about the nunc pro tunc judgment. Finally, to the extent that this appeal is about the nunc pro tunc judgment, it must be dismissed be cause we have no certification of the right to appeal, or a notice of appeal, regarding that judgment. See Williams v. State , 603 S.W.3d 439, 446

- 4 8 (Tex. Crim. App. 2020)

.