Michael Lee Brode v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 20, 2024
• Docket: 04-22-00802-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-22-00802-CR

Michael Lee BRODE, Appellant

v.

The STATE of Texas, Appellee

From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CR-XX-XXXXXXX Honorable M. Rex Emerson, 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

Appellant Michael Lee Brode appeals the trial court’s judgment adjudicating guilt. On

December 6, 2021, Brode pled guilty to the offense of possession of a controlled substance in the

amount of less than one gram. The trial court sentenced him to three years deferred adjudication 04-22-00802-CR

community supervision. Thereafter, the State moved to proceed to adjudicate guilt alleging Brode

violated the terms of his community supervision. On November 9, 2022, the trial court heard the

State’s motion to adjudicate guilt and entered a judgment of conviction. The trial court sentenced

Brode to eighteen months in state jail and assessed: a $2,000 fine; $290 in court costs; and $1,050

in reimbursement fees, of which $975 were attorney’s fees.

On appeal, Brode’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 Brode’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 Brode with copies of counsel’s Anders brief and motion to withdraw, a

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

record, file his own brief, and seek discretionary review should this court conclude Brode’s appeal

is frivolous. 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.). Thereafter, we granted Brode’s motion for pro

se access to the appellate record and we set the deadline for Brode to file a pro se brief. Brode did

not file 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

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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

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 brief and the record, we conclude the appeal is not wholly frivolous

and there are arguable grounds 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). Further, the record shows Brode is

indigent and does not indicate a material change in his financial circumstances occurred; therefore,

the judgment should be modified to delete the assessment of court-appointed attorney’s fees

against Brode. See Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (“A defendant

who is determined by the court to be indigent is presumed to remain indigent for the remainder of

the proceedings in the case unless a material change in the defendant’s financial circumstances

occurs.”); Wilmurth v. State, 419 S.W.3d 553, 555 (Tex. App.—San Antonio 2013, no pet.)

(modifying judgment to delete assessment of attorney’s fees when defendant is indigent).

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 grounds noted in this opinion. See Bledsoe,

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178 S.W.3d at 827. We order the trial court to notify this court of the appointment within forty-

five days of our order.

Irene Rios, Justice

DO NOT PUBLISH

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