Broderick Maximillian McHenry v. State

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
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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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