Gray v. State
928 S.W.2d 561
Tex. Crim. App.
1996
Check Treatment

*1 cards or certificates or had Nevertheless, renewed. the veniremembers unlawfully. this case were not selected v. 542, Lawton

Compare 10(c) (Tex.Crim.App.1995). of Section provided §

the 1991 act that amended 62.001 Safety Department “[t]he of Public person’s to include a name -a person

list ... unless the is issued or renews personal driver’s license identification

card or on or certificate effective 1991, Leg.,

date of Acts this Act.” 72nd ch. 10(c).

442, The effective date act January point

was 1992. We overrule

error number fourteen.

CLINTON, dissents.

OVERSTREET, J., points of dissents on joins.

error 15-22 and otherwise GRAY, Appellant, Eric

Van Teter, Dallas, appellant. Ross Texas, Appellee. The STATE Wise, Dallas, Atty., Karen R. Asst. Dist. Paul, Austin, Atty., Matthew State’s Tony HICKERSON, Appellant, John State. Texas, Appellee. STATE 635-94,

Nos. 669-94. PETI- OPINION ON APPELLANTS’ TIONS Texas, Court of Criminal FOR DISCRETIONARYREVIEW En Banc. MEYERS, Judge. 26, 1996.

June appellant Gray The trial court convicted burglary building a sen- assessed years. The trial tence ten court convicted burglary a habi- years. tation and assessed sentence of five appealed, claiming Both ineffective assistance each, counsel, respective in his notice declared and moved the trial court for of facts. court, however, respond motions. either *2 562 fact, Appeals get both to when In rule

The Fifth Court affirmed wanted. 53(j)(2) convictions, specifically temporal addresses this concluding appellants that did by appellant desiring an diligence asserting requiring in that not exercise due thus, indigency a free facts an and, to file indigency not entitled State, pre- affidavit and motion “within the Gray time No. free record on Thus, (Tex. perfecting the 05-92-01307-CR, appeal.” scribed for we 1994 WL 236284 in speak do not need to terms of dili- Dist.], “due App. Hickerson v. [5th — Dallas gence” “timely filing.” say only or State, 05-92-00423-CR, We No. 1994 263355 WL appellants seeking that rule 1994). the benefit of Dist.], (Tex.App [5th We . —Dallas 53(j)(2) indigency file must an affidavit and granted discretionary review to decide move court that the for a asser- appeals in whether the court erred its tion time in set out the statute and determinations. Abdnor, also, must with consistent demon- Ap in Included the Texas Rules indigency strate his at the pellate by provision Procedure is a said, appellant That each both here indigent defendants can obtain a free state timely timely indigency filed his affidavit appeal: ment of facts on moved court the for a statement of facts. prescribed perfecting Within the time But Court of held that “[t]he appellant pay an unable to record does not show whether the trial court may, by the statement facts motion and appellant’s to indi held determine court have to gent appellant ...” that not status did statement facts furnished without asserting due in indi- exercise his motion, charge. hearing the if After State, 05-92-01307-CR, gency. Gray v. No. appellant pay court finds the is unable to (Tex.App 1994 [5th WL 236284 . —Dallas give security or for the statement of Dist.], 1994); No. 05-92- facts, the reporter the court shall order to 00423-CR, (Tex.App WL . —Dal ... furnish the statement of facts Tex. Dist.], 1994). las This implies [5th RApp. 53(j)(2). P. requirements appellant that did not meet the provision, A to similar 53(j)(2) he of rule ensure 53(j)(2), in rule existed the Code of Criminal Thus, under the repeal its in Procedure before 1986. Tex. appeals’ analysis, court rule re 40.09, § art. 5. Both con- CRiM. PROC-Code only appellant quires not claim he is appellants in struct a framework which must indigent and move for free statement of which, in assert even facts, successfully prod but he also claim, pre- to on that mo court conduct sumed, but, rather, by the trial determined face, however, rule tion. On does court after a In Abdnor v. and, impose duty although this (Tex.Crim.App.1986), 712 S.W.2d 136 this process due demands a whenever 40.09, analyzed recognized Court art. 5 and party propo a factual must or appellant’s an compliance stat- sition, requirement this forces appellant ute both seeking hearing to party the benefit of that his ensure that it be held. appellant carry that the the burden appeals only Perhaps the court of meant veracity of as to an read rule so demand that unmistakably indigency claim. As made we only appellant not file motion a free timely appellant clear facts, also mo- but filed his affidavit exercised the Tex.RApp. P. the trial court. Unlike diligence.” Id. at 142. requisite “due however, 31(c)(1), does not state judi- compliance requirement such a are necessitate we procedures cial seem self-evident. Lad- liberty inject not at it into the rule. judicial procedures, system en with our Hickerson, ineffectively employ- appellant, Gray if As operate those to each judgment procedures simply we vacate the ing such were allowed therefore appeals that obtain- court and order this to be seems believe ing hearing trial court is a difficult mat- abated while the conducts hear- ter, “prodding” whether is indi- kind of determine some is, gent. contrary, requesting If the finds that he trial court. On the *3 hearing provide scheduling simple enough him a facts at is a no a busi- charge, prose- after which the time ness —in fact it is the business of limits routine cuting every appeal shall be as in calculated court. other cases. If the court he is not finds that I agree the Court of

indigent, certify it shall to the court fact diligence in appellants did not exercise due appeals, may finally dispose then they asserting their claims because proceedings without further hearing a issue. A request failed to on the court. party who on shoulders burden appar- of which not the resolution KELLER, Judge, dissenting. requires ent from the record and the devel- states, correctly, ap- opment present his claims evidence pellant the benefit seeks hearing. to the trial court order to a obtain indigency affidavit, must file an move the Although of Rule and assertion, hearing a on that that a seem assume hear- hearing. Ap- demonstrate ing conducted, will be this should not be pellants hearing did not a court for interpreted as court to the trial motions, yet majority grants on their automatically. Instead, hearing schedule a relief. I reasoning. do follow this assumption place will take from stems that the defendant procedure place responsi- rules of Our prove allegations, since bility the affidavit itself for causing the statement of facts to be self-proving longer is no and the trial court 5S(k). appellant. Tex.R.App.P. filed has facts. discretion to determine the Pres- Rule makes clear that the necessary entment is when motion is filed plead prove indigency has burden to longer post-trial the case is no taxpayer in order to obtain funded state- docket, filing merely the court’s a motion ment facts on To show entitle- put be court on insufficient the trial record, taxpayer appellate ment funded (1) (Compare notice of the to take action. defendant must: exercise due 31(d) Tex.RApp.Pro. (requirement) that mo- asserting indigency, including filing (2) presented new trial be filed and allegations of an sustain the court). Therefore, the trial I hold that in the affidavit at the Abdnor v. prove in order to to a 136, 140-41 be entitled (Tex.Crim.App. S.W.2d indigence obtaining purposes taxpay- Snoke v. er funded statement of facts on (Tex.Crim.App.1989). Indigency is not alone and mo- defendant must his affidavit showing diligence. sufficient without a of due request tion to the trial court and 712 at 141. request The declarations of Because not seek claims, taxpayer they funded statement of facts in in order to their request notices did not Therefore, judg- No I issue. hear- them. would affirm the Consequently, appellants Appeals. did ment the Court carry proving burden majority argues claims. The the re- McCORMICK, P. WHITE quirement JJ., a MANSFIELD, join. “in proposition

factual forces the

party seeking benefit of However, appellants

ensure that it be held.” argue requested

do hearings.

denied