# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 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 arg uable 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 appe llate counsel.04

- 23

- 00079

- CR

- 2

- B ACKGROUND 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 s he 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 m otion to withdraw. I NDEPENDENT R EVIEW

“ 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, du ring 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 suf ficient resources or income to immediately pay all or part of the fine and costs. T EX . C ODE C RIM . P ROC . A NN . 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 4,04

- 23

- 00079

- CR

- 3

- 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 fo r the inquiry described by Subsection (a

- 1) to be on the record .” T EX . C ODE C RIM . P ROC . A NN . 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 no t 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 tim e 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 ’ [a nd holding that an] appellant was not required to preserve this complaint for appeal through objection ” (quoting Proenza v. State , 541 S.W.3d 786, 79 9 (Tex. Crim. App. 2017) ) ), with Rodgers v. State , No. 06

- 23

- 00101

- CR, 2023 WL 6379018, at *2 (Tex. App.

— Texarkana Oct. 2, 202 3, 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.3 d 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 T EX . C ODE C RIM . P ROC . A NN . art. 43.035(a) (requiring the trial court, on the defendant’s request, to “ hold a hea ring 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 this04

- 23

- 00079

- CR

- 4

- article”); Sloan v. State , 6 76 S.W.3d 240, 242 n.2 (Tex. App.

— Tyler 2023, no pet.) (citing T EX . C ODE C RIM . P ROC . A NN . 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, 2 023 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 th e record does not show that the trial court conducted an inquiry on the record regarding the defendant’s ability to pay court costs? See T EX . C ODE C RIM . P ROC . A NN . art. 42.15(a

- 1); T EX . R. A PP . 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.04

- 23

- 00079

- CR

- 5
- 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. A NDERS P ROCEDURE In h er Anders brief, court

- appointed counsel advised this court that s he 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 appe al, 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 t rial 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 , 8 13 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