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 
Briceno v. State Page 2

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.
Briceno v. State Page 3

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 4

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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