Markqual Darnell Palacio v. the State of Texas

                                    IN THE
                            TENTH COURT OF APPEALS

                                    No. 10-22-00379-CR

MARKQUAL DARNELL PALACIO,
                                                                Appellant
v.

THE STATE OF TEXAS,
                                                                Appellee



                             From the 52nd District Court
                                Coryell County, Texas
                               Trial Court No. 15-22749


                            DISSENTING OPINION

          This Court embarked upon an extensive review and discussion of its Anders

procedure in Cummins. Cummins v. State, 

 (Tex. App.—Waco 2022, pet.

ref'd).    In Cummins, we were careful to distinguish between reversible error and

nonreversible error. 

 If the alleged error impacts guilt or punishment, it can only be

raised in a merits brief. See e.g. 

.

          Although wrapped up and labeled an Anders/Allison brief, in which only

nonreversible errors on the merits can be raised, the error raised in this appeal is about
punishment – a fine. We have routinely ignored the wrapper and treated such briefs for

what they are, a brief on the merits of a nonfrivolous issue. See Vaughn v. State, Nos. 10-

17-00275-CR & 10-17-00276-CR, 

, **2-3 (Tex. App.—Waco Mar.

14, 2018, no pet.) (not designated for publication); Hines v. State, Nos. 10-13-00286-CR, 10-

13-00292-CR, 

, at *4 (Tex. App.—Waco May 29, 2014, pet. ref'd)

(not designated for publication). See also Cummins v. State, 

, 614, 618-19,

n.10 (Tex. App.—Waco 2022, pet. ref'd).

         The Court disregarded its precedent on this issue. It was readily apparent upon

review of the record that no fine had been pronounced at the sentencing hearing, as it

must be to be included in the judgment, and the purported court costs was the balance

due on the fine. This was the only issue briefed. It could have been disposed of at that

point in a quick two-page opinion.

         But rather than dispose of the appeal, the Court abated the appeal. The alleged

basis of the abatement was via the use of a procedure to which I had repeatedly dissented.

See e.g. Willingham v. State, No. 10-21-00158-CR (Tex. App.—Waco Oct. 19, 2022, order)

(not designated for publication); Carnley v. State, No. 10-21-00104-CR (Tex. App.—Waco

Oct. 19, 2022, order) (not designated for publication); Welch v. State, 

 (Tex.

App.—Waco 2022, order); Rios v. State, No. 10-21-00266-CR (Tex. App.—Waco, June 9,

2023, order) (not designated for publication) and others. I dissented to its use in those

appeals and this appeal as well. Nevertheless, the appeal was abated.

         That is when our real problems began. The trial court, faced with what was so

clearly an error, simply signed a nunc pro tunc judgment. I understand why the trial

Palacio v. State                                                                       Page 2
court did it. The Court essentially forced the trial court into doing it; but we erred in

doing so. We cannot abate a proceeding to require a trial court to fix an error that does

not prevent a proper presentation on appeal. See TEX. R. APP. P. 44.4; Carnley v. State, No.

10-21-00104-CR, 2023 Tex. App. Lexis 8896, *22-31 (Tex. App.—Waco Nov. 30, 2023)

(publish) (Gray, C.J., dissenting). I have argued strenuously against the use of this

procedure. 

         The Court has now used the procedure beyond reviewing the assessment of

mandatory court costs; now, it is being used to allow the trial court to review sentencing

errors in the judgment. Just one of the many problems in using this procedure is that we

now have a judgment from which no appeal was taken—the Nunc Pro Tunc Judgment—

and the defendant cannot get that judgment properly reviewed without starting an

entirely new appeal. See Carnley v. State, No. 10-21-00104-CR, 2023 Tex. App. Lexis 8896,

*4-46 (Tex. App.—Waco Nov. 30, 2023) (publish) (Gray, C.J., dissenting). Because we

have no certification of the right to appeal or a timely notice of appeal, that appeal, of the

nunc pro tunc judgment, will require the granting of a writ of habeas corpus for an out-

of-time appeal.

         In summary, I would follow this Court’s precedent in Hines/Vaughn/Cummins,

consider the issue on its merits, reform the judgment to delete the fine, affirm the

judgment as reformed, and dismiss counsel’s motion to withdraw as moot. See Vaughn

v. State, Nos. 10-17-00275-CR & 10-17-00276-CR, 

, **2-3 (Tex.

App.—Waco Mar. 14, 2018, no pet.) (not designated for publication); Hines v. State, Nos.

10-13-00286-CR, 10-13-00292-CR, 

, at *4 (Tex. App.—Waco

Palacio v. State                                                                        Page 3
May 29, 2014, pet. ref'd) (not designated for publication). See also Cummins v. State, 

, 614, 618-19, n.10 (Tex. App.—Waco 2022, pet. ref'd). 1



                                                          TOM GRAY
                                                          Chief Justice

Dissent delivered and filed December 28, 2023




1I would also order the trial court to withdraw the void nunc pro tunc judgment it signed on September
20, 2023. I note that if the Court is correct in its ability to even consider the judgment nunc pro tunc in
this appeal, then it should perform its independent review of that judgment.

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