*3
the trial
accept
court should
it as suffi-
C.J.,
MORRISS,
Before
CARTER and
indigent.
cient to find him
After a de-
MOSELEY, JJ.
fendant establishes a
show-
ing of indigency,
“an
court can
ORDER
uphold á trial court’s determination of
non-indigence
only if
record contains
Order
Chief Justice MORRISS.
evidence
such a
supporting
determina-
After Michael Earitt
was convict-
White
reviewing
tion.” ... A
court
up-
should
driving
of
license
ed
while his
was sus-
hold a
ruling
trial court’s
denying indi-
pended,
indigency
the trial court held
gent status
if
finds
only
it
that the trial
hearings to determine whether White was
court, having
two-step process,
used this
to a
an appointed
entitled
free record and
“reasonably” believed the defendant was
appeal.
on
direct
lawyer
The sole
testimo-
not
as to
ny
indigency
White’s
came from
(citations omitted).
at 6
Id.
only
The State’s
evidence that at-
White.
to rebut
evidence
tempted
“Determining indigency
was
for pur
that,
occasions,
proof
on two
of
prior
poses
appointing
indigency
White
counsel and
$10,000.00
$1,000.00.
posted
obtaining
bonds of
and
of
free record are
The trial court ruled that White was not
inquiries,
discrete
but
factors to be
was, thus,
entitled
indigent
not
to have
considered are the same.”1 Id. at 5-6.
(1) court-appointed
to represent
indigency
counsel
“Relevant
to both
determina
(2)
provided
income,
him or
a free
ap-
record
on
tions are ‘the defendant’s
source of
income, assets,
owned,
As
peal.
effectively
property
the State did not
re-
outstand
indigency,
ing obligations, necessary
but White’s evidence of
we con-
expenses,
deny
ages
dependents,
clude
it was error to
White a
number and
1. A defendant can be found
for one
other. Id. at 6.
purpose
being
without
found
for the
2014,
January 2,
hearing,
ly,
at the
income that
is available
spousal
” Id,
had
that his circumstances
re-
testified
(quoting
at 6
defendant.’
Tex.Code
26.04(m) (West
the fact
mained the same other than
Supp.
Ann. art.
Proc.
Crim.
not
in two weeks and was
he had
worked
2013)).
may
court ...
not consider
“The
expense
his bondsman the added
paying
posted or
the defendant has
whether
week.
per
bail,
$100.00
to the ex-
posting
except
capable
that it reflects the defendant’s finan-
tent
in
property
also
valued the
by the con-
circumstances measured
cial
as
that he did not
possession. White testified
listed
this subsection.”
siderations
Tex.
the vehicles
and clear.”
own
“free
Accord-
26.04(m);
Proc. Ann. art.
vehicle,
Code Crim.
guess,
which
ing to White’s
one
State,
S.W.3d
Whitehead
tag
was
the “the
office” determined
worth
(Tex.Crim.App.2004).
$1,500.00,
$800.00,
only
and the other
*4
only
vehicle was worth
because it
$200.00
purposes of
indigency hearings for
The
inoperable.
was no
was
There
evidence
27, 2013,
held
and Jan-
appeal2 were
June
money was
which showed how much
still
hearing,
At
first
White
uary
2014.
the
on
loans. When asked
owed White
the
that he
at Texas Pride
testified
worked
worth,
how much his
were
White
horses
that,
varied,
pay
his
Welding
although
and
now,
“Right
Horses
replied,
nothing.
are
made
from
generally
anywhere
he
$250.00
cheap now.”
testified
per
to
week. White
$325.00
and no other
he had no bank account
The State presented no evidence to
From
or sources of income.
this
assets
income,
dispute White’s
as to his
evidence
testimony, the trial court determined that
Instead,
expenses,
property
or
valuation.4
$1,300.00per
earned
month.
White
posted
the State showed that White
a
$10,000.00 surety appellate bond on the
expenses.
next
about his
White
testified
conviction,
again
same date
was
paid
with
and
White lived
his sister
no
on
for
charge
driving
arrested
another
rent,
grocer-
spent
per month on
$400.00
suspended,
while license
and immediately
ies,
per
to feed
and
month
six
$480.00
$1,000.00
posted
surety
following
a
bond
driv-
horses he owned. Because White’s
the new arrest.
suspended,
paid
he
er’s license
friends
week to
gasoline per
secure
figures
The trial court
the
$240.00
recited
in-
transportation.3 White also had two vehi-
testimony
cluded in White’s
in its findings
possession
cles in his
that he had financed.
pointed
of fact and
to the amount of the
required
The terms of his
him
loans
managed
post
bonds that White
to se-
vehicles,
insurance
maintain
on both
which
Referring
cure his release.
to the form
Thus,
per
him
court-appointed
cost
month.
White
filled out
to obtain
$180.00
counsel,
expenses equaled
that his
testified
court found that White was
per
totally
he
open
amount
earned
month. Additional-
“not
honest and
about what
30, 2013,
party
prohibition
dated
In a letter
October
cannot
this
circumvent
informed this
that he “was found indi-
submitting
ap-
the first time on
evidence for
that,
trial,”
gent before this
and
6;
"[t]wo weeks
peal.
McFatridge,
See
S.W.3d at
later,
indigent using
was found
not
[he]
to be
Whitehead,
assets
had”
the vehicles.
[he]
[he]
White testified that he had
and concluded White was not a credi- no other
Although
assets.
White owned
person.
ble
The trial court found that
horses,
six
White’s uncontested testimony
indigent.
White was not
suggested that the horses were not worth
facts,
much. Based on these
we find that
“A
pur
defendant is
White made a
facie case of indi-
poses
appointment
of appellate
gence.
counsel if he
financially
is ‘not
able to
employ
McFatridge,
counsel.’”
The State presented no evidence
S.W.3d at 5 (quoting Tex-.Code Crim. Proc.
contesting
Instead,
figures.
(West
Supp.2013)).
art. 1.051
Each
Ann.
presented
State
and the trial court consid
county
guidelines
has
and financial stan
ered the amount of the
post
bonds White
dards that it applies to determine whether
ed to secure his release from confinement.
defendant
of However, the
prohibit
Standards
the con
appointing counsel. Tex.Code Crim. Proc.
sideration of resources available to friends
26.04(í) (West
Ann. art.
Supp.2013); see
or relatives of the accused in determining
McFatridge,
The Lamar Indigence De is because the resources of friends and (the Standards) termination Standards list family are not relevant when persons such *5 several factors that the trial court must legally are not pay bound to for the defen consider in determining “if the accused is dant’s appellate expenses. State, Snoke v. private unable to retain counsel without 210, 780 S.W.2d 213 (Tex.Crim.App.1989). hardship substantial to the accused or the testimony There was no showing that the dependents.” accused’s Lamar District post funds used to White’s bonds came County Indigence Plan, Court & from a source that properly could be con Standards, adopted October Determination by sidered the court. 8, 2010, http://tidc.tamu.edu/ available at Based on application White’s for IDPlan/ViewPlan.aspx?PlanID=94. After counsel, appointed the trial court found reviewing the Standards and the record of that White was “not totally honest and the indigency hearings, we find that White open about what assets had and what [he] made a prima indigence, facie case of income had” and concluded that [he] State failed to meet its burden to show was not a person. credible The trial court that indigent, White was not and the trial completely is not free to disbelieve the findings court’s findings bases for such defendant’s concerning assertions his fi do not up line with the applicable authori status, nancial may but it disbelieve the ties. defendant’s assertions “if there is a rea 2, 2014, The January evidence from the sonable, so, articulable doing basis for ei hearing monthly established that White’s ther because there is conflicting evidence expenses by exceeded his income at least or because the evidence submitted is in that, though White testified $100.00. he some manner suspect by or determined had in possession, two cars his he was Whitehead, the court to be inadequate.” paying a note on each vehicle. White esti- 130 at S.W.3d car, mated that inoperable, one which was $200.00, was worth an Contrary estimated and that to the trial court’s finding, the the other car had been valued income reflected in “tag application $1,500.00. office” at No testimony appointment clari- of counsel was consistent with fied the payments amount of the loan testimony on his at trial. application The also 20.1(k). The trial court found that "White no automobiles or that "Whiteowned
stated reporter’s testified wished to have free record. property. "White a other valuable Thus, in own the vehicles his is enti he did not we determine whether White testimony clear.” No “free and to a free record. An criminal possession tled recoup any would that White suggested right defendant has a constitutional to a of the vehicles. White the sale appeal funds from free record in a first appellate in pos- Texas, that the horses his testified further right. See Skidmore v. 808 S.W.2d If the not valuable. defen- 1991, were session no (Tex.App.-Texarkana allegations may always be “financial dant’s qualifying “For as an pet.). disbelieved, the defendant must copy in order to receive a a then effective review of indigence, charge, record furnished without a defen would indigence determination trial court’s ‘pay give dant must be unable to or securi would be an in- stymied, and there be ty appellate for the record.’” McFa indigent defendants Tex.R.App. truly creased risk that tridge, (quoting 309 S.W.3d at of counsel.” Id. at 875. deprived would be 20.2). reporter P. The court estimated that a defendant can make a “The idea $1,125.00 that it would cost to obtain the showing suggests that a trial reporter’s record. The clerk’s record was accept the defendant’s evi- court should estimated to cost additional an $400.00. reason in the record for dence absent some Here, evidence, based on the same we in doing so.” Id. We find the record not conclude that the record insufficient to disbelieving White’s financial no basis this up-front show White could afford assertions. payment. find that was entitled We to a free record.
Moreover, in addition to the factors con- case, in sidered the trial court this County The Lamar is ordered to Clerk Indigence Determination Lamar complete file clerk’s record this mat- required Standards the trial court to con- ter, costs, payment without the advance *6 anticipated complexity the of the de- sider thirty days within of the date of this order. obtaining the estimated costs of fense and Tex.R.App. 34.5(a). See The official P. competent private legal representation for reporter, Mary Taylor, court Ann like- is charged. the matter Lamar District file prepare wise ordered to and the com- Indigence Plan, & Court Court plete reporter’s record in the underlying Standards, adopted October Determination appeal thirty days within of the date of 2010, 8, http://tidc.tamu.edu/ available at Tex.R.App. order. Appel- this See 34.6. P. IDPlan/ViewPlan.aspx?PlanID=94. The lant’s brief in will appeal thirty this be due not reflect consideration of record does days after the complete record has been Therefore, factors. based on the these Tex.R.App. 38.6(a). filed. See P. us, record before we find that the evidence to a support was insufficient determination by Dissent Justice MOSELEY. financially employ that was able to "White The factual circumstances surrounding Accordingly, counsel. it was error to find the trial court’s determination that Michael indigent White was not Earitt was not are undis- appointment appellate of counsel. puted. just There to be information seems “If party a establishes indi contained within those facts that interferes gence, by the trial court clerk and the court a determination this that with reporter failing the the trial court erred in to prepare must rec find Tex.R.App. ord prepayment.” indigent. without P. White to be payments closely should examine the facts list on the as regular We loans ex- relied in upon making penses), which the trial court the of provisions which he said appears that there its determination. It required him to maintain insurance on the at least two areas of White’s financial are First, automobiles. it almost is inconceiva- outgo apparently which contribute to his were, indeed, that if ble there promissory that woeful financial condition seem to be notes that were secured the automo- discretionary part on his and au- biles, White would fail to mention the obli- —horses does not majority tomobiles. The correct- at gations any during time his testimony. of ly obligations proof attribute to the Second, White also although testified that that I State believe should have been employer supplied him with a truck borne White. it, fuel for he was to pay forced friends per (i.e., average week of an almost correctly $60.00 majority points The out the month) per fuel. There is two-step process McFatridge $240.00 set out State, nothing in the reflect record to that White (Tex.Crim.App. S.W.3d 2010). is, claiming any That has made person negotiate the to be effort to with his a prove up employer must first facie for some alternative means to indigency. case of After that facie provide transportation. met, obligation is if State the contests that words, In other are here two instances duty its is to
plea, rebut. White making poor of financial choices White testified that he had six horses of which, taken together, would free up al- him dubious value which cost some $480.00 most per month which $500.00 White could month house. There per to feed and was otherwise direct payment toward the given no evidence contradict appeal. fees for an was, the claim the value of horses at time of hearing, “[Njothing. Hors- The majority points that the out State cheap es are now.” It is not the current did not introduce evidence the cost of problem value of the is the horses that appellate counsel in a case such as White’s. Rather, here. it decision is White’s to The State burden proof would have no maintain pasturage feeding of six all until proved up priina at (an price per horses at a week $120.00 case that he The Lamar month) average per of about $480.00 County Indigence Determination Stan- one of in his problems attempt is (the Standards) dards for determining that he indigent. Although there *7 indigent5 whether an specify accused is is no evidence to White’s claim rebut that that a factor to take into account is “the low, very value of the the horses was there obtaining competent estimated cost of pri- also no is evidence that White could not matter(s) legal representation for the vate opted have at a very to sell them low price charged.” it be Would not White’s obli- (or give away) even them to reduce the gation part showing as a of of a prima his of his money by divesting outflow himself facie case to amount up the of this obligation of for their maintenance. It cost? would seem that the burden on State disprove also said he owned two vehi- that White was indi- that which gent cles were secured loans of undis- would arise after that only prima (for closed amounts which White did not facie case was established White. Plan.aspx?PlanID=94 Plan, 5. Lamar District Court & Court http://tidc.tamu.edu/IDPlan/View available at to find White refusing court in of the trial has made that White no evidence There is as retain counsel attempt whatsoever any by the trial appointed than counsel
other dissent. respectfully I obligation be White’s it not Would court.
(as showing his part of an at least made he has that
indigency) with his current counsel to retain
effort
assets? obligations of estab- at the looking
When facie evidence
lishing White’s factors set out of the indigent, one he was and All Other Dennis HEINERT indigency is Standards to determine in the Appellants Occupants, an accused presumption in- net household accused’s when “[t]he Poverty of the 100% does not exceed come HOUSING WICHITA FALLS annually by the Unit- revised Guidelines as AUTHORITY, Appellee. Health and Hu- Department of ed States No. 07-13-00220-CV. in the Federal published man Services no reference to made Register.” White Texas, Appeals Standards; they were not a since those Amarillo. record, are not evidence they part rely to establish could upon which White July presumption. any such advantage that we
The trial court had an given opportuni-
do not have. He was weigh testimony and
ty to observe White’s He also was credibility as he testified. (as provided) have been
provided we any (apparently
ability to take into account
nonexistent) retain by White to attempts own and to take on his
appellate counsel of White’s cash
into account that much genesis in the have their problems
flow keep- to make in
choices that he continues maintaining a herd of
ing possession of and him retaining vehicles that cost
horses and they than the value are to
more to insure
him. short, failed to
In I believe that White that he was indi- facie case to meet that
gent. Having failed obligation, responsi- the State had no something that he had not
bility to rebut affirm the action
yet established. I would