Jack Edward Miller v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 20, 2024
• Docket: 04-22-00301-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00301-CR

Jack Edward MILLER, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law No. 6, Bexar County, Texas Trial Court No. 633088 Honorable Wayne A. Christian, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: March 20, 2024

MOTION TO WITHDRAW GRANTED; ABATED AND REMANDED

In this appeal, court-appointed counsel filed an Anders brief and a motion to withdraw.

Because arguable grounds for appeal exist, we grant counsel’s motion to withdraw and abate this

appeal. We remand the cause to the trial court for appointment of new appellate counsel.

BACKGROUND

A jury convicted appellant Jack Edward Miller of resisting arrest, search, or transportation.

See TEX. PENAL CODE § 38.03. The trial court sentenced Miller to confinement of one year and

assessed a fine of $1,000 and court costs of $325. The trial court suspended Miller’s jail sentence 04-22-00301-CR

and placed him on community supervision for two years. The fine and court costs were not

suspended.

On appeal, Miller’s court-appointed appellate counsel filed a brief stating he conducted a

professional evaluation of the record and determined there are no arguable grounds to be advanced

on Miller’s behalf. See Anders v. California, 386 U.S. 738, 744 (1967). With citations to the

record and legal authority, counsel explains why he concluded the appeal is without merit. The

brief meets the requirements of Anders. Id. at 744–45; Stafford v. State, 813 S.W.2d 503, 509–10,

510 n.3 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. 1978).

Counsel also provided Miller with copies of counsel’s Anders brief and motion to withdraw, 1 a

motion for pro se access to the appellate record, and informed Miller of his right to review the

record and file his own brief. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014);

Nichols v. State, 954 S.W.2d 83, 85–86 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State,

924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). This court also notified Miller

of his right to file a pro se brief, and Miller filed a pro se brief.

INDEPENDENT REVIEW

Although counsel satisfied the procedural requirements of Anders, we are required to

conduct an independent review to determine whether the appeal is wholly frivolous or whether

arguable grounds for appeal exist. Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009).

If we determine a nonfrivolous ground for appeal exists, we must grant defense counsel’s motion

to withdraw, abate the appeal, and remand the cause to the trial court for appointment of new

counsel. Id. at 766 n.15. The newly-appointed appellate counsel is then required to file a brief

1 Counsel requested to withdraw in his brief. We construe this as a motion to withdraw.

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raising the nonfrivolous ground we have identified as well as any additional grounds the attorney

discovers. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).

After reviewing the briefs and the record, we conclude the appeal is not wholly frivolous

and there are arguable ground(s) for appeal, including whether the trial court erred by failing to

make an inquiry on the record regarding the defendant’s ability to immediately pay all or part of

the fine and court costs. See Almeida v. State, No. 04-22-00669-CR, 2024 WL 172588, at *1–3

(Tex. App.—San Antonio Jan. 17, 2024, no pet.) (concluding an arguable issue exists if the record

does not reflect the trial court made an inquiry on the record regarding defendant’s ability to pay

a fine or court costs); TEX. CODE CRIM. PROC. art. 42.15(a-1).

CONCLUSION

We therefore grant counsel’s motion to withdraw, abate the appeal, and remand the cause

to the trial court. See Garner, 300 S.W.3d at 766 n.15. The trial court shall, within forty-five days

from the date of our order, appoint new appellate counsel to present all arguable grounds of error,

including but not limited to the nonfrivolous ground noted in this opinion. See Bledsoe,

178 S.W.3d at 827.

Irene Rios, Justice

Do not publish

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