Michael Earitt White v. State
441 S.W.3d 803
Tex. App.2014Background
- Michael Earitt White was convicted of driving while his license was suspended and sought appointed appellate counsel and a free appellate record based on indigency.
- At two indigency hearings White testified to variable weekly earnings (~$250–$325), no bank account, no other income, monthly income ~$1,300, monthly expenses roughly equal to income (groceries, horse care, vehicle insurance, transportation paid to friends), and limited asset values (two encumbered vehicles, six low‑value horses).
- The State offered no evidence contesting White’s income, expenses, or asset valuations; it only introduced evidence that White had posted $10,000 and $1,000 surety bonds on two occasions.
- The trial court found White not credible, relied in part on his ability to post bonds, and denied appointed counsel and a free record on appeal.
- The majority applied the McFatridge two-step indigency framework, concluded White made a prima facie showing of indigency, found the State failed to rebut it, and ordered appointment of appellate counsel and preparation of the clerk’s and reporter’s records without prepayment.
- The dissent argued White failed to prove indigency, pointing to discretionary expenses (horses, vehicles), lack of effort to retain counsel, and the trial court’s superior opportunity to assess credibility.
Issues
| Issue | Plaintiff's Argument (White) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether White made a prima facie showing of indigency for appointment of appellate counsel | White: his testimony of low income, no bank account, encumbered vehicles, necessary expenses, and minimal assets shows indigency | State: posting substantial surety bonds and other facts show White had resources; trial court found him not credible | Court: White made a prima facie showing; State failed to rebut; trial court erred in denying appointed counsel |
| Whether White is entitled to a free appellate record without prepayment | White: cannot "pay or give security" for clerk’s and reporter’s records given his financial testimony | State: reliance on bond posting and trial court credibility finding to argue White could afford records | Court: same evidence supports indigency for free record; clerk and reporter ordered to file records without advance payment |
| Proper role of bond posting and third‑party resources in indigency determination | White: bond posting by others is not proper proof of defendant's own ability to pay; no record showing funds came from defendant | State: bond amounts reflect ability to secure funds for costs | Held: Courts may not consider friends’/relatives’ resources unless legally bound; bond posting alone did not rebut prima facie showing |
| Permissible basis for trial court to disbelieve defendant’s financial testimony | White: testimony should be accepted absent record reason to disbelieve | State: trial court may discredit testimony where plausible, articulable reasons exist (discretionary expenses, poor choices) | Held: No reasonable, articulable basis in the record justified disbelief; trial court’s credibility finding unsupported on record |
Key Cases Cited
- McFatridge v. State, 309 S.W.3d 1 (Tex. Crim. App. 2010) (two‑step test for indigency: prima facie showing shifts burden to State to rebut)
- Whitehead v. State, 130 S.W.3d 866 (Tex. Crim. App. 2004) (limitations on disbelieving defendant’s financial assertions and on considering third‑party resources)
- Snoke v. State, 780 S.W.2d 210 (Tex. Crim. App. 1989) (friends’ or relatives’ resources not properly considered unless legally bound)
- Skidmore v. Texas, 808 S.W.2d 708 (Tex. App.—Texarkana 1991, no pet.) (indigent criminal defendant’s right to a free appellate record on first appeal of right)