Opinion
No. 05-03-00439-CR
Opinion Filed December 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-50563-NW. Abated.
Before Justices BRIDGES, RICHTER, and LANG.
OPINION
Alberto Machado appeals his conviction for possession of methamphetamine in an amount of 400 grams or more. Appellant entered a plea of guilty to the offense before the jury. The jury assessed punishment at forty-five years confinement. Appellant's attorney filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of her brief to appellant. Appellant filed a pro se response to counsel's brief raising four grounds as possible arguable issues. Because it resolves the appeal, we turn to appellant's fourth ground wherein he contends the jury's failure to assess a mandatory fine renders his sentence void. Without reaching the ultimate merits of appellant's claim, we agree with him that the omission of a fine in this case constitutes an arguable issue for appeal. The original indictment in this cause charged appellant with possession with intent to deliver methamphetamine. At some point, appellant and the State reached an agreement to reduce the charge to straight possession. Possession of methamphetamine in an amount of 400 grams or more "is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for life or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000. . . ." See Tex. Health Safety Code Ann. § 481.115(f) (Vernon 2003) (emphasis added). The trial court instructed the jury that the fine was optional and, in the verdict form, gave them the option of assessing "none or amount" as the fine. The jury returned a verdict of forty-five years confinement and wrote "NONE" in the space reserved for assessment of a fine. The Ninth Court of Appeals has held that punishment assessed under article 481.115(f) must include both imprisonment and a fine. See Barton v. State, 962 S.W.2d 132, 139 (Tex.App.-Beaumont 1997, pet. ref'd). See also Young v. State, 922 S.W.2d 676, 678 (Tex.App.-Beaumont 1996, pet. ref'd); Reed v. State, 795 S.W.2d 19, 19 (Tex.App.-Houston [1st Dist.] 1990, no pet.) (interpreting similarly-worded articles in health and safety code as requiring mandatory fines). Because the omission of a fine from the jury verdict and sentence is an arguable issue for appeal, we cannot conclude appellant's appeal is wholly frivolous. Therefore, we grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We abate the appeal and remand it to the trial court. We order the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits. See id. In the brief, counsel should discuss whether the punishment assessed is void for failure to include a fine and any other grounds that might arguably support the appeal. See id. We further order the trial court to inform this Court in writing of the identity of new counsel and the date new counsel is appointed. Appellant's brief will be due thirty days after new counsel is appointed. The State's brief will be due thirty days after appellant's brief is filed. We remove this cause from the submission docket.