                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00029-CR



   BRODERICK MAXIMILLIAN MCHENRY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 71st District Court
               Harrison County, Texas
              Trial Court No. 16-0281X




      Before Morriss, C.J., Burgess and Stevens, JJ.
                                            ORDER

          Broderick Maximillian McHenry entered an open plea of guilty to aggravated robbery with

a deadly weapon. After a punishment hearing in which McHenry prayed for judge-ordered

community supervision, the trial court sentenced McHenry to sixty years’ incarceration. On

appeal, McHenry’s attorney has filed an appellate brief in which he concludes that the appeal is

frivolous and without merit. Under the requirements of Anders v. California, counsel is required

to conduct a “conscientious examination” of the record and file “a brief referring to anything in

the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744

(1967).

          Our independent investigation of the record in this case, as required by the Texas Court of

Criminal Appeals in Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), showed that

McHenry’s competence was evaluated by Thomas G. Allen, Ph.D. The curriculum vitae does not

establish that Allen is qualified under Article 46B.022 of the Texas Code of Criminal Procedure

by either certification or specialized training related to incompetency or insanity evaluations. Nor

is there any other sufficient information demonstrating that Allen is otherwise qualified under Art.

46B.022. The record also shows that McHenry filed an application for community supervision,

referenced the application at his plea hearing, and sought community supervision during

punishment even though he may not have been eligible for judge-ordered community supervision

as a result of the nature of the offense. See TEX. CODE CRIM. PROC. ANN. § 42A.054(a)(11).

          After conducting our own investigation of the record, we have determined several arguable

issues that require additional briefing, including: (1) whether Allen was qualified to evaluate


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McHenry under Article 46B.022 of the Texas Code of Criminal Procedure; (2) whether McHenry’s

waiver of the right to a jury trial and plea of guilt were intelligently made in light of representations

that he was eligible for community supervision; and (3) whether counsel rendered ineffective

assistance in advising McHenry he was eligible for community supervision. 1

          “When we identify issues that counsel on appeal should have addressed but did not, we

need not be able to say with certainty that those issues have merit; we need only say that the issues

warrant further development by counsel on appeal.” Wilson v. State, 40 S.W.3d 192, 200 (Tex.

App.—Texarkana 2001, order). In such a situation, we “must then guarantee appellant’s right to

counsel by ensuring that another attorney is appointed to represent appellant on appeal.” Stafford,

813 S.W.2d at 511 (citing Anders, 386 U.S. at 744).

         Accordingly, we grant current counsel’s motion to withdraw, and we abate this case to the

trial court for the appointment of new appellate counsel. The appointment is to be made within


1
 With respect to this third issue, we note that Appellant’s counsel discussed the possibility of an ineffective assistance
claim in McHenry’s brief. Counsel concluded that even if defense counsel provided deficient representation,
         the record is silent as to whether Appellant would have desired a jury trial had counsel advised him
         that he could only avoid a prison sentence if the trial court deferred a finding of guilt and placed
         him on deferred adjudication community supervision. The record is also silent as to whether trial
         counsel’s reference to probation was understood to mean deferred adjudication community
         supervision.
Thus, Appellant’s counsel concluded that “the record is insufficient to determine whether trial counsel’s
representation, even if deficient, was prejudicial to Appellant.”
         However, in Miller v. State, the Texas Court of Criminal Appeals held,
         A defendant meets the prejudice prong of his ineffective assistance of counsel claim by
         demonstrating that he would have opted for a jury if his attorney had correctly advised him that he
         was ineligible for probation from the trial court. He does not have to show that the likely outcome
         of the jury trial he waived would have been more favorable than the court trial he had.
Miller v. State, 548 S.W.3d 497, 498 (Tex. Crim. App. 2018). And, the Texas Court of Criminal Appeals expressly
left open the question of what evidence is sufficient to show “a reasonable probability that [the defendant] would have
opted for a jury if his attorney had correctly advised him about his probation eligibility.” Id. The issue in this case is
whether the record evidence is sufficient to support a finding that McHenry established “a reasonable probability that
he would have opted for a jury if his attorney had correctly advised him about his probation eligibility.” Id.

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ten days of the date of this order. Newly appointed appellate counsel is to address the issues

presented here, as well as any other issues that warrant further development on appeal.

        A memorialization of the trial court’s appointment shall be entered into the record of this

case and presented to this Court in the form of a supplemental clerk’s record within ten days of the

date of appointment.

        The current submission date of October 8, 2019, is hereby withdrawn. Upon receipt of the

supplemental clerk’s record contemplated by this order, our jurisdiction over this appeal will

resume and we will establish a new briefing schedule.

        IT IS SO ORDERED.

                                                     BY THE COURT

Date:          October 10, 2019




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