Alfredo Montejano v. the State of Texas ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00079-CR
Alfredo MONTEJANO,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2022CR5078
Honorable Ron Rangel, Judge Presiding
PER CURIAM
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: April 10, 2024
ABATED AND REMANDED; MOTION TO WITHDRAW GRANTED
In this appeal, court-appointed appellate counsel filed an Anders brief and a motion to
withdraw. Because there is an arguable ground for appeal, we grant counsel’s motion to withdraw
and abate this appeal.
We withdraw our November 14, 2023 submission date; the appeal will be reset for
submission at a later date. We remand the cause for the trial court to appoint new appellate counsel.
04-23-00079-CR
BACKGROUND
A jury found Alfredo Montejano guilty of evading arrest or detention while using a vehicle,
a third-degree felony. On January 17, 2023, the trial court sentenced Montejano to four years and
six months’ confinement and imposed court costs of $430.
Court-appointed counsel Julie B. Pollock filed an Anders brief. See Anders v. California,
386 U.S. 738, 744 (1967); Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). In the
brief, counsel asserts that she reviewed the entire record and concluded there were no nonfrivolous
points of error. See Kelly, 436 S.W.3d at 319; Nichols v. State, 954 S.W.2d 83, 85 (Tex. App.—
San Antonio 1997, no pet.). Counsel also filed a motion to withdraw.
INDEPENDENT REVIEW
“Under Anders, after receiving a brief claiming that there are no arguable grounds for
appeal, the reviewing court must review the record to make an independent determination.”
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (emphasis removed); accord
Anders, 386 U.S. at 744.
Having conducted an independent review of the record, we conclude there is an arguable
ground of appeal. See Stafford, 813 S.W.2d at 511; Nichols, 954 S.W.2d at 85.
A. Article 42.15 Requirement for Inquiry on the Record
The record does not show that the trial court complied with the statutory requirement to
conduct an inquiry on the record regarding the defendant’s ability to pay court costs.
Notwithstanding any other provision of this article, during or immediately after
imposing a sentence in a case in which the defendant entered a plea in open court
as provided by Article 27.13, 27.14(a), or 27.16(a), a court shall inquire on the
record whether the defendant has sufficient resources or income to immediately
pay all or part of the fine and costs.
TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1) (emphasis added) (effective Sept. 1, 2021); Cruz v.
State, No. 14-21-00454-CR, 2023 WL 3236888, at *4 (Tex. App.—Houston [14th Dist.] May 4,
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04-23-00079-CR
2023, pet. granted) (recognizing the trial court’s duty “to act sua sponte and hold an ability-to-pay
inquiry when a fine or costs are imposed on a defendant in the judgment”).
B. Optional Statutory Waiver
“A defendant may waive the requirement for the inquiry described by Subsection (a-1) to
be on the record.” TEX. CODE CRIM. PROC. ANN. art. 42.15(a-2). The record is silent on whether
Ramos waived the requirement for the inquiry to be on the record. See id.C. Error Preservation
The record does not show that Montejano asserted that he was unable to pay the court costs.
Cf. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (recognizing that “a claim
challenging the bases for the imposition of court costs [may be raised] for the first time on appeal”).
Compare Cruz, 2023 WL 3236888, at *4 (concluding “that a defendant’s right to an ability-to-pay
inquiry is ‘fundamental to the proper functioning of our adjudicatory system’ [and holding that an]
appellant was not required to preserve this complaint for appeal through objection” (quoting
Proenza v. State, 541 S.W.3d 786, 799 (Tex. Crim. App. 2017))), with Rodgers v. State, No. 06-
23-00101-CR, 2023 WL 6379018, at *2 (Tex. App.—Texarkana Oct. 2, 2023, no pet.) (concluding
that a failure to timely “object to the trial court’s imposition of fines and court costs ‘at the earliest
possible opportunity’ [did not] preserve [appellant’s] complaint for [appellate] review” (quoting
Davison v. State, 602 S.W.3d 625, 648 (Tex. App.—Texarkana 2020, pet. ref’d))).
D. Article 43.035(a)’s Applicability
The record is also silent on whether the trial court conducted an inquiry on the record after
it pronounced its January 17, 2023 judgment. See TEX. CODE CRIM. PROC. ANN. art. 43.035(a)
(requiring the trial court, on the defendant’s request, to “hold a hearing to determine whether that
portion of the judgment imposes an undue hardship on the defendant”); id. art. 43.035(e) (vesting
the trial court with continuing “jurisdiction for the purpose of making a determination under this
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04-23-00079-CR
article”); Sloan v. State, 676 S.W.3d 240, 242 n.2 (Tex. App.—Tyler 2023, no pet.) (citing TEX.
CODE CRIM. PROC. ANN. art. 43.035(a), (e)) (noting a defendant’s right to request a hearing and
the trial court’s jurisdiction to hold it); see also Clifton v. State, No. 01-22-00641-CR, 2023 WL
5437181, at *25 n.33 (Tex. App.—Houston [1st Dist.] Aug. 24, 2023, pet. filed) (mem. op.)
(“Because we are remanding the case to the trial court to reassess the amount of court costs, the
trial court will have an opportunity to inquire on the record into [the defendant’s] ability to pay
costs and make any modifications to the judgment it deems necessary.”).
E. Arguable Ground of Appeal
We have not previously decided the question which the record currently before us presents:
Is it reversible error if the record does not show that the trial court conducted an inquiry on the
record regarding the defendant’s ability to pay court costs? See TEX. CODE CRIM. PROC. ANN. art.
42.15(a-1); TEX. R. APP. P. 44.2; Cruz, 2023 WL 3236888, at *4.
We have not found any mandatory authority on this question from the Court of Criminal
Appeals, and there is not a clear, well-established consensus among our sister courts. E.g., Cruz,
2023 WL 3236888, at *5 (criticizing the analysis in Hernandez-Faced v. State, 661 S.W.3d 630,
638 (Tex. App.—Houston [14th Dist.] 2023, pet. ref’d)); Rodgers, 2023 WL 6379018, at *2.
Accordingly, this is an arguable ground of appeal. See Almeida v. State, No. 04-22-00669-
CR, 2024 WL 172588, at *2 (Tex. App.—San Antonio Jan. 17, 2024, no pet. h.) (per curiam).
F. Scope of Opinion
This opinion identifies an arguable ground of appeal. See Nichols, 954 S.W.2d at 86. In
it, we have cited statutes, rules, and opinions which may be applicable to the question before us.
The cited authorities are not an exhaustive list: other statutes, rules, or opinions may apply.
Further, by citing opinions, we are neither adopting nor rejecting their reasoning.
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04-23-00079-CR
On remand, the new appellate counsel must brief the issue we have identified. See id. Our
identification of an arguable ground of appeal is not a predetermination that this record presents
reversible error; it is an opportunity for Appellant to brief the identified issue “as well as any
additional grounds that the attorney discovers,” and for the State to respond. See id.
ANDERS PROCEDURE
In her Anders brief, court-appointed counsel advised this court that she had reviewed the
record but concluded that there were no arguable points of error. Because our independent review
has determined there is an arguable ground of appeal, we grant Julie B. Pollock’s motion to
withdraw. See Nichols, 954 S.W.2d at 86.
We withdraw our November 14, 2023 submission date. After the briefs are filed, we will
reset this case for submission.
We abate this appeal and remand the cause to the trial court. We order the trial court to
appoint a different attorney to represent Appellant on appeal and notify this court of the
appointment within fifteen days of our order. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.
Crim. App. 2005); Stafford, 813 S.W.2d at 511.
If Appellant wishes to prosecute this appeal, new appellate counsel must file a brief that
addresses the issue we have identified and any other arguable grounds for appeal. See Bledsoe,
178 S.W.3d at 827; Stafford, 813 S.W.2d at 511.
PER CURIAM
Do not publish
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