                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00173-CR

DARRELL FERGUSON,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                            From the 13th District Court
                              Navarro County, Texas
                            Trial Court No. D34418-CR


                          CONCURRING OPINION


      Today, we return to a well-worn path; the minimum procedure required for

compliance with the constitutional mandate of the assistance of counsel, sometimes

referred to as an Anders procedure. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,

18 L. Ed. 2d 493 (1976). I have long contended that the precedent of this Court required

more procedure than was necessary. Beckett v. State, 166 S.W.3d 752 (Tex. App.—Waco

2005, order) (Gray, C.J., concurring); Fewins v. State, 166 S.W.3d 751 (Tex. App.—Waco

2005, order) (Gray, C.J., concurring); Perryman v. State, 159 S.W.3d 778 (Tex. App.—
Waco 2005, order) (Gray, C.J., concurring); Martinez v. State, 137 S.W.3d 832, 833-834

(Tex. App.—Waco 2004, order) (Gray, C.J., concurring); Martinez v. State, 135 S.W.3d 233

(Tex. App.—Waco 2004) (C.J. Gray dissent to withdrawn order); In the Interest of E.L.Y.,

69 S.W.3d 838, 843 (Tex. App.—Waco 2002, order) (Gray, J., dissenting); Guerrero v.

State, 64 S.W.3d 436, 444 (Tex. App.—Waco 2001, order) (Gray, J., dissenting). See also

Garner v. State, No. 10-05-00218-CR, 2007 Tex. App. LEXIS 4246, *17-20 (Tex. App.—

Waco May 30, 2007, pet. ref’d) (not designated for publication) (Gray, C.J., dissenting);

Villanueva v. State, 209 S.W.3d 239, 249-252 (Tex. App.—Waco 2006, no pet.) (Gray, C.J.,

concurring). We now, for the first time, step back from the most stringent of our own

cases interpreting those requirements. Evans v. State, 933 S.W.2d 334 (Tex. App.—Waco

1996, order).

        In Evans we held that if a defendant is entitled to have the judgment reformed in

any manner, he is entitled to some "relief" from this Court, and such relief is sufficient to

establish that an arguable point may be raised on appeal. Id. at 335-336. As evidenced

by the Court’s discussion of Evans, a number of courts in this State have either expressly

or by implication decided Evans overstates the situations in which an appellate court

must abate an appeal for the appointment of new counsel. Most of the cases cited deal

with a modification of the judgment and an affirmance as modified. In at least one of

the cases cited, the modification was to remove an assessment of attorney’s fees for a

court appointed attorney when there is no evidence of a criminal defendant’s ability to


Ferguson v. State                                                                      Page 2
pay at the time the judgment is rendered or signed, even though that issue was not

identified by appointed counsel that had filed a motion to withdraw and an Anders

brief. In that kind of case, the judgment is clearly more favorable to the defendant since

the judgment is modified to remove the assessment of attorney’s fees against the

defendant. However, in that fact pattern, this Court has previously, consistent with

Evans, required that the proceeding be abated and new counsel appointed. Tolbert v.

State, No. 10-12-00223-CR, 2013 Tex. App. LEXIS 500 (Tex. App.—Waco Jan. 17, 2013,

order) (not designated for publication); Pivonka v. State, No. 10-12-00176-CR, 2013 Tex.

App. LEXIS 496 (Tex. App.—Waco Jan. 17, 2013, order) (not designated for publication);

Steele v. State, No. 10-10-00424-CR, 2011 Tex. App. LEXIS 5979 (Tex. App.—Waco July

27, 2011, order) (not designated for publication); Parker v. State, No. 10-10-00381-CR,

2011 Tex. App. LEXIS 5978 (Tex. App.—Waco July 27, 2011, order) (not designated for

publication). Today, by an abatement order, a majority of the Court adheres to that

precedent. McElwain v. State, No. 10-13-00291-CR, 2014 Tex. App. LEXIS ____, (Tex.

App.—Waco March 6, 2014, order) (publish).

        That is a fact pattern upon which there is clearly a split of authority among the

courts of appeals which should possibly be resolved by the Court of Criminal Appeals.

But it is not an issue that is easily framed and presented to the Court of Criminal

Appeals because, by the time the appeal has been abated and new counsel appointed

and the case then reviewed on its merits, the issue is moot. See id. (abatement order


Ferguson v. State                                                                   Page 3
requiring the appointment of new counsel to brief the attorney’s fees issue on its

merits). Likewise, in those appeals in courts that modify the judgment to eliminate the

assessment of cost, the State has frequently conceded error and the judgment is

modified to the defendant’s advantage and therefore there is no party that wants to

appeal that issue, and there is no other issue to appeal. That aspect of this appeal, that it

is not easily framed for review, may be the same.

         This brings me to where the modification of the judgment in this appeal in which

a motion to withdraw and an Anders brief were filed is different from most cases in

which a modification of the judgment in an Anders appeal has occurred. In this appeal,

the attorney actually briefed the issue and suggested the modification of the judgment

was necessary for the judgment to properly reflect the crime for which the defendant

was convicted. Based on this, I do not belief this is a true Anders appeal. How could it

be? The attorney identified a defect in the judgment that is recognized by appellate

counsel and the court as erroneous and the judgment is being modified to correct the

error.

         Under this fact pattern, I would treat the brief for what it is, a brief on the merits,

and agree the modification is necessary to correct the judgment. Thus, I concur in the

Court’s judgment to affirm the trial court’s judgment as modified.




Ferguson v. State                                                                         Page 4
        But, nevertheless, there is the divergence of authority, referenced in both the

Court’s opinion and this concurring opinion regarding the extent to which, if any, a

reviewing court can otherwise modify a trial court’s judgment in an Anders appeal.1

        Whether we stay on the path this Court set out in Evans and continuing through

today in McElwain or whether it should have a slight course correction is a question for

this Court to decide subject to review and correction by the Court of Criminal Appeals.

But whether there is another path; an entirely different path, which is more direct and

less costly lies with the Court of Criminal Appeals.2

        With these comments, I concur in the Court’s judgment.




                                                   TOM GRAY
                                                   Chief Justice

Concurring opinion delivered and filed March 6, 2014
Justice Davis joins this concurring opinion
Publish




1 I refer to these as Anders appeals only because that is the style case in this area of the law. The holding
in Anders has been so undermined in subsequent decisions that at least one Supreme Court justice has
said that it has been effectively overruled. Smith v. Robbins, 528 U.S. 259, 289; 120 S. Ct. 746; 145 L. Ed. 2d
756 (2000) (Stevens, J., dissenting). And if I were writing on a blank slate, I would be inclined to take a
hard look at California’s procedure, which has passed U.S. Supreme Court review, in which attorneys
may file what is called a Wende brief. See id. at 276; People v. Wende, 600 P.2d 1071, 1074-1075, (1979). It
seems to overcome much of the potential delay and cost which occurs when the reviewing court
identifies an issue and remands the proceeding for full briefing of the identified issue. See Smith, 528 U.S.
at 265-266.

2It is conceivable that the legislature could also become involved in developing a replacement procedure
for Anders appeals.

Ferguson v. State                                                                                      Page 5
