Court of Appeals of Texas, Sixth District, Texarkana
Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 16-0281X
Morriss, C.J., Burgess and Stevens, JJ.
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).
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).
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 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.
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).
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 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.
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.
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
 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 ...