*1 WHITEHEAD, Appellant, Patti
The STATE of Texas.
No. 2077-02. of Criminal of Texas. Court March *3 summary expense income and listed $4,069.33 and monthly
a total income of $3,458.95, monthly expenses of with total expenses left over. Some of the $610.38 nonessential, as such were or could be cable, phone, for $133.98 $39.88 household designated for “Mise.” $250.00 Watts, City, Larry Appel- Missouri mortgage In expenses. addition to lant. *4 ($565.39), expense the income and sum- Vollers, Paul, Attorney, Matthew Jim mary Pay- for listed $231.83 “Loans/Notes Austin, Atty., for State. State’s net worth statement Appellant’s able.” $5,071.36 listed a total of of cash bank OPINION accounts, left over from $610.38 KELLER, P.J., delivered the of opinion expense summary, income and a 1991 MEYERS, PRICE, the Court in which $2,500.00, at a 1995 Chevrolet valued JOHNSON, COCHRAN, HOLCOMB and $4,300.00, Chrysler at val- valued house JJ., joined. $62,000.00, ued at and investments $1,664.08 $76,145.82. total assets —for I. BACKGROUND $51,048.68 The liabilities listed were a $65,960.11 legal for ex- mortgage, home A. Trial $111,500.00 personal loan from penses, Appellant was convicted of theft. After Whitehead, $3,231.09personal loan Jesse trial, she filed motion for new trial and a $2,321.12 litigation, for and a loan personal “motion request pro- to withdraw and expenses total liabilities for medical —for pauperis.” ceed in The latter mo- forma $234,061.00. Gaither, (signed by tion defense counsel Watts, defense counsel appellant) and re- At on post-trial hearing conducted (1) quested permit three items of relief: 16, 2002, January the trial court consid- appellant’s attorneys retained to withdraw hearing the motions. After testimo- ered (2) case, appellant from the to find indi- ny denying on for trial and the motion new (3) gent appellate purposes, for and motion, asked, the trial court “What appoint to represent appellant counsel coun- other issues do we have?” Defense appeal. The motion stated that counsel informed the court that sel Gaither reporter talked to the court and was ad- motion it was the motion to other before that the vised record consisted of “some proceed pauperis. When Gaith- forma (9,000) pages” nine thousand and would by saying longer rep- he no began er was forty-five cost around thousand dollars. resenting appellant, replied, the trial court Appellant monthly also filed a income and you you’re mean not here as her “What do expense summary, a “net worth” state- until representation? You’re on the case liabilities, outlining ment assets and and an you.” respond- relieves Gaither Court accuracy fi- verifying affidavit of the Well, fine,” ed, okay. pro- “Oh that’s nancial docu- information those two the merits of the indi- ceeded to address Although appel- ments. the motion and gence question. filemarks, separate lant’s affidavit bore the court that “we tried to body Gaither told of the motion stated that the affidavit indigence determination expedite” and financial statements were attached informa- “process providing a little bit the motion. appellant testify
tion attendant to that motion.” The trial be allowed to about her appellant’s any court stated that it had read financial status or that other evidence affidavit A showing assets and liabilities. on that matter. be offered regarding discussion ensued the State’s 12, 2002, February appel- On Watts and the con- subpoena any for records lant filed affidavits. Watts’s affidavit stat- attorneys. appellant tract between and her appellant hospitalized for can- ed The trial reviewed con- Gaither’s reporter him cer and the court told tract, appeals which excluded forty- cost no than would less scope representation. The trial court dollars, thousand and she would re- five appellant’s proceed then denied motion to quire payment in advance unless the coun- granted mo- as an Gaither’s it. ty paid Appellant’s affidavit stated tion to withdraw. cancer, hospitalized that she was with- requested Gaither then counsel, employ and un- out the means to court order a free record for give security for the pay able to for or Appellate under Procedure Texas Rule *5 in this cause. appellant 20.2.1 He that would argued notice on Feb- appeal The of was filed to entitled a free record even if it were 22, 2002, ruary February 2002. On was to an determined that she not entitled clerk an appellant filed with district appointed attorney. This was de- request reporter. That affidavit from the court nied, court did mak- but the trial authorize affidavit stated that the record contained ing indigence proceedings a record of the 13,000 pages and would approximately for the of the trial purpose appealing $65,000, approximately including not cost a ruling regarding requests court’s further the cost of exhibits. The affidavit appointment free record and of counsel.2 reporter that re- stated the court would Attorney expressed under- Watts then his begin she payment before would quire standing motion to was that the withdraw Ap- on the The of work record. Court to both and him- intended cover Gaither granted sup- to peals appellant’s motion self, replied but the trial court that plement record with affidavit. only granted motion was as to Gaither.
Although attorney expressed Watts a be- Appeal B. incompetent lief that he was to handle in an Appellant raised three contentions court disa- appellant’s appeal,3 denying appeal the trial court’s order greed. appellant also stated that Watts First, appellant argued indigent status. to and her did not the assets husband have ill, that the trial court failed to follow the that buy appellant record and cancer, forth Texas Code procedures set recovering from and would Procedure, regard- Article At Criminal 26.04 go hospital hearing. to the after the In ing indigence. the determination proceedings, the end of Mr. Gaither asked, complained the trial “May regard, excused?” and the trial she that we be lawyer represent one that did not a requested appoint court assented. No court are to the At this time Watts also stated that he still 1. All further references rules had Appellate to be under He Texas Rules of Procedure. considered himself oath. hearing, regarding the testified earlier in the for new motion trial. properly transcrip- 2. The trial ordered court hearing indigence of its tion of the for review to the indigence ruling appeal. All further to articles are on See Snoke references (Tex.Crim.App.1986). Code Procedure. Texas of Criminal prescribed any of the factors appellant hearing at the to consider Appeals 26.04.”5 The Court of request appel- court did not that article that the a appellant prima also found that made questionnaire or submit to complete lant rec- Second, showing of entitlement to free ap- examination from the court. facie Finally, the Rule 20.2.6 Court ord under the trial court pellant contended found that Appeals denying abused its discretion in the re- refusing permit abused its discretion
quests appointed lawyer for an free to withdraw from the case.7 Watts record. claimed that the documents She remanded the case to the Court of prima she submitted satisfied facie immediately a hear- trial court “to conduct indigence shifting the burden — Rule comply Article 26.04 and ing with proof requiring ruling to the State and 20.2.”8 The further held that: Court if produced in her favor the State no con- trary Finally, remand, evidence. she contended may the trial court conclude On that the trial court its indigent. abused discretion If appellant is or is not ordering to remain as indigent, ap- Watts the court -finds she is argued counsel. there was no She pellant appeal determination. hearing However,
evidence at the that Watts had appel- if the Court finds that agreement entered into an her to appoint with court must indigent, lant is her, represent getting paid that he was reporter the court counsel and direct services, his or even that wanted appeal file the record in the reporter’s *6 him to her represent appeal. Although on If the charge. on the without merits participated finds, conceded that Watts it court so then shall cause trial, partic- the she claimed that such clerk’s record to be filed in supplemental ipation qualify pursue did not alone him to containing a appeal the on the merits appeal a criminal on her behalf. signed, written order or orders to this effect.9 Appeals The Court of found that judge comply proce- discretionary
trial failed to with the petitioned for State prescribed by regard- dures Article 26.04 granted review. We review address ing appointment of counsel: “the trial and withdrawal of questions judge wholly any inquiry, failed to make counsel.10 State, CR, affirmatively hearing slip
5. Whitehead v. No. shows that a 13-02-098 record 9, 31438696, op. (Tex.App.-Cor- by judge at 2002 WL and the trial conducted 31, Christi, 2002)(not pus designated grant October the defendant a free court refused publication). for record? trial 2. Is it an abuse of discretion for the 6. Id. at 9-10. indigent a defendant court to refuse find by filed the defendant where the affidavit 7. Id. at 9. an show that she and have [sic] her husband $48,800.00, cash and annual income over 8. Id. at 10. $5,681.00, accounts in the amount of bank $1,664.00, investments of and automobiles (citations omitted). 9. Id. at 10-11 $6,800.00 at valued granted grounds We for legal the State’s nine 3. Is there a between insol- distinction 10. review, which are follows: vency indigency? as and indigent meaning person 4. Is a within 1.Can the Court of reverse and Code of Criminal Procedure Annotat- Texas hearing indigen- remand for a on the issue of ed, they apparently have Art. 1.051 where judge cy abused his on the basis that trial $14,000.00 of over failing hearing unencumbered assets to conduct a discretion in $48,000.00 merely an annual income of over defendant’s motion for a free record when 872
II. ANALYSIS One issue we must address is- unsworn ev whether an motion constitutes Scope A. review In the for idence this context. motion governing context, General considerations long has im new trial this Court appellate apply review here. An appellate posed rule matters not determin may factual consider assertions must able from the trial record be raised record,11 (such party outside the and a by allegations are as in an at sworn affidavit) by cannot circumvent sub prohibition to merit further tached order mitting affidavit the first time on an for consideration the trial court.16 The appeal.12 supple judicially imposed While record reason for this rule was fishing expedit rules if appellate prevent widespread mented under some omitted,13 that a thing supplementa ions.17 also held motion is has been We con self-proving tion rules cannot be used to create new not in numerous other Moreover, texts, for independent evidence.14 an court’s such as: motion examination generally tape recording,18 review of an original of the record itself prosecution limited to the evidence before the motion to dismiss trial,19 a speedy court at the time the trial court’s ruli failure to afford a motion counsel,20 a mo- ng.15 court-appointed to dismiss State, 456, (Tex.Crim.App.1996), they obligations list which S.W.2d 476 because debts and 11. Janecka 937 denied, 825, 522 t. U.S. exceed the value of their assets? r ce 86, (1997). 139 43 judge 118 S.Ct. L.Ed.2d 5. a trial abuse his discretion in Does person refusing to find who has 385, (Tex.Crim.App.1999), amount of Moore v. 398 sufficient unencumbered assets denied, attorney pay t. U.S. hire r ce (2000). 120 S.Ct. 147 L.Ed.2d merely person because that has other debts may make which them insolvent? 34.5(c), 34.6(d). judge See TEX. R. APP. P. 6. Does a trial abuse his discretion in *7 refusing find that a is to defendant State, 356, (Tex.Crim.App.2001); where the defendant has assets which can be 14. Solomon v. 49 S.W.3d 365 State, v. 937 attorney pay used to an and for a record ams hire Willi S.W.2d 479, (Tex.Crim.App.1996). 487 person presents and no evidence where they have no credit or insufficient credit 308, State, (Tex. Dragoo attorney 15. v. S.W.3d 313 pay to to an and to 96 borrow funds for Crim.App.2003). pay a record? judge 7. Does a trial abuse his discretion in State, 482-483, 461, 16. v. refusing grant by the to Hicks 75 Tex.Crim. motion withdraw 755, State, (1914); Reyes v. by 171 S.W. 765-766 attorney an who a was hired defendant 812, trial, 849 (Tex.Crim.App.1993); S.W.2d 816 during attorney presents where that no State, 103, (Tex. Wallace v. 106 S.W.3d 108 employment to show evidence that his Crim.App.2003). handling any appeal? not the to include judge 8. a trial abuse his discretion in Does Reyes, supra. 17. See Hides attorney by refusing allow an retained a during defendant the trial withdraw on 784, State, S.W.2d 790 appeal attorney’s 18. Johnson v. 650 of the claim that he because (Tex. 1983). Crim.App. competent appeal? is not to handle the 9. Where the trial court refuses allow an State, 622, by during 623 attorney defendant the 19. v. 592 S.W.2d retained the McManners (Tex.Crim.App.1980). appeal, trail withdraw on does such action by ap- the trial court in effect constitute an 863, State, pointment appellate 865 attorney of the as counsel 20. v. Williams 493 (Tex. 1973). indigent? Crim.App. the if defendant is found to be
873 fact, In the counsel,21 an unsworn motion.29 upon tion to withdraw as a motion to allegation an enhancement in an quash contains appointment of counsel statute indictment,22 judg- a motion in arrest of First, requirements. two different oath ment,23 continuance,24 a motion for a mo- indi- upon requesting a' determination of jury panel,25 the and a mo- quash tion to finan- gence, defendant must detail his disqualify judge.26 On the tion to by completing cial resources under oath hand, recently recognized other we have by responding to ex- questionnaire, written legislative authorization for trial courts to magistrate, by or by judge amination or suppress resolve motions to consider and Second, determines before both.30 “on the motions themselves.”27 found We indigent, is that a defendant indeed plain language of Article 28.01 oath, sign provided defendant must a form So, gener- this dictated result.28 while the statute, stating that he is without by not, al rule that an unsworn motion does counsel.31 employ means to itself, by present upon which re- evidence granted, can can Legislature lief authorizing rule a free context, if modify particular that rule appellate record also contains an oath re- it so desires. quirement. provides Rule 20.2 that a de- fendant, perfecting within the time for statute, motion-to-suppress
Unlike the by “mo- appeal, request free record appointment-of-counsel statute does tion and affidavit.”32 As with give option appoint- the trial court to rule magistrate responsible determining 21. Id. or indigent; whether the defendant is or State, 519, (Tex. (3)complete questionnaire respond Worton 492 S.W.2d 520 Crim.App.1973). by judge magistrate. to examination 26.04(o) provides: 31. Article State, 906, (Tex. 23. Patton v. 489 S.W.2d Crim.App.1973). making de- Before a determination whether a indigent, request fendant is the Courtshall State, (Tex. Rollins v. 488 S.W.2d sign defendant to under oath a statement sub- Crim.App.1972). day stantially following in the form: "On of, 20-, (name by I have been advised (Tex. 25. Watson v. court) my right representation Court of Crim.App.1971). charge pending counsel in the trial of the against employ me. I am without means to *8 State, 156, 26. Hardin v. 453 S.W.2d 156 hereby my choosing counsel of own and I (Tex.Crim.App.1970)(motion disqualify to trial request appoint to counsel for me. the court judge). defendant)” (signature of the State, 819, added). Bishop (emphasis pro- 27. v. 85 S.W.3d 821-822 32. Rule 20.2 The rule (Tex.Crim.App.2002). entirety: vides in its appeal, perfecting the an Within the time for 28. Id. at 822. appellant pay appel- who is unable to for the affidavit, may, by late record motion and ask 26.04, passim. 29. Article appellate court to have the trial the hearing charge. furnished without If after 26.04(n) provides: 30. Article appellant the finds that the the motion court security appellate requests pay give for the A defendant who a determination of cannot record, indigency appointment reporter to of counsel shall: the court must order the (1) complete questionnaire proceedings. a the When the court under oath con- transcribe resources; cerning appellate been his financial certifies that the record has (2) reporter respond appellant, the must under oath to an examination furnished to the county general regarding by judge paid the funds of the his financial resources the be from 874 statute, prior
ment of the free record or future time.”35 We have articu- counsel option ruling two-step rule offer of process determining does not the lated a conclude, upon the motion itself.33 We whether a defendant is for the then, only allegations purpose sworn are to be a obtaining ap- of free record on (1) whether determining considered a de- peal: pri- the defendant must amake (2) to a fendant is entitled free record. indigence, ma showing of facie made, when the the prima facie apply principles now dis We burden shifts the State show that Assuming, cussed to this case. above indigent.36 defendant is not in fact This deciding, February without 12 pro- allocation of “best burdens serves affidavits from and Watts and truly right tect the indigent defendant’s 22 February from the court affidavit of counsel.”37 Once effective assistance of reporter properly part were the reco prima a the defendant has satisfied facie rd,34 that they we nevertheless hold can showing, court can uphold of considered a review the trial determination non-indigence trial of court’s court’s order because the affidavits were only sup- if the record contains evidence not before the trial court at the time of its porting have such determination.38 We ruling. allegations also hold that We implied two-step process at that the least are appoint the motion to counsel not evi also be to determine whether should used purpose appointing dence of coun to appoint appeal. counsel for Immediate- obtaining sel or for free record. What ly of ratio- after the “allocation burdens” under ap remains will be considered nale, stated: “If a is to we defendant review, of propriate standard which we perfect appeal, he must be meaningful now turn. nor denied neither the record the services merely he cannot afford counsel because B. Standard of review of them.”39 indigency “The determination is case-by-ease
made on as standard of review attends basis of the two-step process time the is raised and not as of some differs somewhat issue committed, rule, concerning the exact in which the offense was in the moment jurisdiction. amount set court. trial court loses Id..,passim. 33. 604, Robinson, 607 Gray 35. v. 1988). (Tex.Crim.App. appeal February 34. The of was filed on notice 12, indigence hearing the clerk’s record State, (Tex. 36. Snoke v. February and the was mailed on Court Crim.App.1989). February file-stamped the record on previously filing We held that (specifically, protect the effective as- Id. appeal a notice divests appeal). sistance of counsel on general jurisdiction. Ramirez *9 549, (Tex.Crim.App.2003); Lopez S.W.3d 550 State, 213-214; v. 38. at Abdnor 712 State, 637, Id. (Tex.Crim.App. v. 18 S.W.3d 639 136, 1986). (Tex.Crim.App. However, 2000). S.W.2d 141-144 25.2(g) Rule states that fur (unless proceedings in court ther Snoke, 210; 39. 780 S.W.2d at see also by appellate provided or the otherwise law Sifford State, 526, rules) 527 v. suspended has are "[o]nce (Tex.Crim.App.1974)(upholding trial court’s appellate been court." See also filed in State, (Tex. that was not conclusion defendant Green 906 S.W.2d v. because purposes appointing counsel juncture, At we Crim.App.1995). need support the record to any potential there was "evidence in not conflict between our resolve rule, ambiguity finding”). any or that cases and the within issue, recently considering standard review articulated conclude After we Ross, in State v. Ro ss.40 In upheld we cases, past our rather than the stan ruling granting court’s a motion to Ross, dard articulated in should continue suppress on the basis that the trial court govern a trial court’s determination of might completely disbelieved the tes review of matters. witness, timony of the though State’s even By requiring “pro the courts to formulate testimony was uncontroverted.41 If cedures financial standards deter applied Ross standard were to the case mining indigent,” whether defendant is hand, at the trial court simply could disbe the Legislature has indicated a desire for appellant’s lieve statement in her affidavit appointment of counsel to be more that the financial documents are an accu strictly regulated many than other matt depiction and, rate her circumstances Legislature ers.46 The specified further consequently, disbelieve the financial docu list of factors to consider: themselves, ments simply appel which are summary lant’s of her financial situation.42 In determining whether defendant is indigent, the court or desig- the courts’ contrast, By past sug our cases may nee consider the defendant’s in- gest that the trial court does not have the come, income, assets, source of property nearly unfettered discretion seen other owned, outstanding obligations, neces- contexts to simply disbelieve the defen sary expenses, ages the number and dant’s evidence of indigence. We have dependents, and spousal reversed a trial income that is court’s failure find indi gence on nothing more than the defen available to the defendant.
dant’s
testimony.43
own
The idea that a
designee may
the courts’
not consider
defendant can
prima
make a
showing
posted
whether the defendant has
or is
facie
suggests that a trial court
accept
should
bail,
capable of posting
except to the
the defendant’s evidence absent some rea
extent
it reflects the defendant’s
son in the
doing
record for not
so.44 Of
by
financial circumstances as measured
course,
a trial court
require a defen
considerations listed
this subsec-
verify
dant to
his claim of indigence with
tion.47
supporting documentation.45 If the trial
Moreover,
appointment
of counsel
verification,
court does not request
then
appears
contemplate
statute
that infor-
the defendant’s sworn allegations should
mation about the
defendant’s financial con-
accepted
allegations
unless the
are sus
pect in a
ordinarily
manner that
dition
verification would
will
come
the defen-
remedy.
Legislature
dant.48 And while the
could
(defendant’s
40.
(Tex.Crim.App.2000).
ty to a claim of- for support documentation substantive determinations —as indigence (e.g. payroll slips, instance, erroneously suppressing bills evi- parties), not, opting third it did instead to question indigence dence. The of is sub- require ques- the defendant to fill out a ject if the to reconsideration defendant’s questions tionnaire answer under oath and, in changes,50 financial status at least leaving and to the court discre- trial counsel, appointed of the defen- case to request supporting tion documentation. required can be to reimburse the cost dant many And the contains other re- statute of if it is later legal services determined designed quirements to ensure that indi- to that he is able do so.51 Thus, gent defendants obtain counsel.49 to designed rep- statute seems ensure Although of review the standard by indigent persons of increas-
resentation trial determination of indi a court’s accountability judges ing the of the who gence as as the standard is not deferential That design make the determination. is Ross, a of the part deference is still inconsistent with standard would complete is The trial court standard. give virtually judges unbridled discretion allega ly to the defendant’s free disbelieve reject allegation of indi- defendant’s status, concerning own financial tions his gence. apparent More consistent with but trial an alle court disbelieve legislative requirement intent would be reasonable, gation if there is a articulable finan- judges accept the defendant’s so, is doing because there basis for either (so allegations they cial made long as are or because the "evi conflicting evidence oath) under any absent reason believe manner sus dence submitted is in some they are or incomplete. untrue pect be or determined
Further, original policy reason for inadequate.52' review, less deferential articulated in our cases, prior applies: pro- it better still Hearing C. policy adequately affording motes facts of review the Before we representation persons. legal case, trial whether the we examine allegations may If a defendant’s financial hearing." It adequate court conducted an disbelieved, always and the defendant be recognize is important prove indigence, must then effective his indigence the two duty diverges court’s indigence review of a trial court’s determi- purpose for the questions, indigence i.e. stymied, nation and there would be would pur for the indigence free truly indigent risk that increased To free pose free obtain a counsel. deprived defendants would be counsel. due record, must exercise the defendant disadvantages erroneously
And the rul- asserting indigence his ing relatively diligence are the defendant’s favor hear- his at the finding allegations sustain Erroneously innocuous. defen- must 26.04, generally. 49. See after trial. See Keeter Article we ex (Tex.Crim.App.2002). While- 37-38 Snoke, 26.04(p); at 50. Article concerning suitability of press opinion no context, the standard the recantation to the does seem suited standard 26.05(g). 51. Article context. arguably 52. This the same standard often occurring applied immediately to recantations *11 877 contrast, ing.53 By right mony attorney to an attor- appellant While Watts.
ney “waivable-only” right,54 is a and absent there now indicates was other evidence to waiver, considered, the courts have an affirmative did in- attempt she obligation indigent appel- ensure that an hearing. troduce other evidence at the We lant has counsel.55 have no reason to that trial believe court would have refused to allow the in- Appeals’s The Court of remand order evidence, troduction of other such as live requires court to reconsider the testimony appellant, had that evi- question indigence in both contexts. any dence been offered. Nor do we see While the Court of faulted the significant gaps picture the financial trial court for conducting inadequate by appellant. purported offered She inquiry regarding appointment income, itemize all expenses, property, as- counsel, specifically it did not fault the trial sets, and debts.56 inquiry pertained court’s as it to the re- quest for a free record. Instead the Court Appeals’s As for the Court of conclusion of Appeals appellant held that had amade appellant prima made facie prima case and apparently assumed record, pay she could not for the facie further inquiry was warranted. The re- conclusion, true, if justify would relief mand order is erroneous both counts. rather than a remand for proceed- further ings. A required only remand would be if Appellant in submitted “an deprived the trial court had the State of expense come and summary” and a “net opportunity respond to appellant’s statement,” worth along signed with a affi evidence. But the State had the same swearing davit the information con opportunity as to offer whatever tained these financial documents was evidence it wished. true. The defense tendered these docu course, party may Of either move ments to “expedite” indigence determi reconsideration of the trial court’s determi- process. nation Under circum these stances, nation on the question if cir- the documents served the same purpose materially changed cumstances have since answering as question written naire and the trial court ruled.57 thus sufficed to We likewise meet the re 26.04(n)(l). quirements recognized ability of Article to reconsider More over, hearing conducted, indigence question connection with de- and the termining trial court did nothing to limit its whether the defendant is enti- scope.
The trial court considered financial tled to a request free record.58 No documents submitted appellant, the ar reconsideration upon changed based cir- counsel, guments of and the sworn testi- cumstances has been made. Abdnor,
53.
hearing designed
878 Indigence It category pro-
D. ation. is this last that greatest possibility the of a duces diver- turn to a review the We now of gence ability in the to pay defendant’s in indigence trial court’s determinations in these two contexts. appointment In of this case. counsel context, if indigent is is defendant he We now turn to the merits of financially to employ “without means appellant’s indigence. Although claims of choosing.59 counsel” of own For the his appellant’s alleges “net worth” statement
purpose determining of entitlement to a assets, her outweigh that her liabilities record, a free defendant is considered indi net means negative worth no deter gent pay if he for give security” “cannot deciding corporations minative. In appellate inqui record.60 these While qualify pauperis cannot for in treatment generally ries the same to involve factors Supreme appeal, Court indicated considered, possible be it is for a defen corporate insolvency and individual dant to be one context but not are necessarily the other. In v. for not the same be Castillo exam ple, managed temporarily corporation the defendant had to retain cause insolvent counsel, but that he may perfectly we determined could court pay able costs transcription not for of the pay Likewise, legal and retain counsel.64 reporter’s notes.61 net negative individual’s worth does necessarily indigence; translate into inquiries Relevant both are question real is whether the defendant is appointment factors set out in the coun legal paying counsel and for capable statute, previously quoted sel in this opin appellate record. income, ion: the source of in defendant’s assets, come, owned, outstanding property admission, appellant’s own had By she necessary the num obligations, expenses, accounts, $5,000 in bank over over cash ages dependents, spousal ber and in $1,600 investments, totaling cars two defendant, come available to abili $6,800, $10,000 equity in her worth of ty ability post bail to extent had, by Appellant also her own home. ability to the relates other factors. income, admission, a household after net the defendant funds is some borrow all a month. expenses paid, were of $610.38 thing be taken into account in money. are amounts These substantial considering how the defendant’s assets and Moreover, $111,500.00 loan from ability pay.62 property relate to Of to be a loan appears “Jesse Whitehead” course, required a defendant should not be relative, no indication from a and there is that can never be money repaid borrow trial court could what the loan is for. The except by depriving the defendant of the loan did not reasonably believed the in have expense necessities of life.63 And the Appellant right away. to be repaid for the hiring paying volved counsel or legal ex- payments record is also a valid consider- did not include 19, Hockless, 536, 26.04(b). 139 S.W.2d 20 59. Article Tex. 164 (Tex. 1942)). 60. Rule 20.2. 63. Id. 552, (Tex.Crim.App.1980).
61. 595 S.W.2d 554 Colony, 506 U.S. 64. Rowland v. Men's Calif. 206, 716, Lowry, L.Ed.2d 656 Goffney 113 S.Ct. 121 See (1993) quoting (Tex.1977)(citing and Pinchback v. *13 penses sheet, on her expense refusing permit income and discretion in Watts though she claimed the debt. The trial withdraw as counsel. Retained trial coun- court could have concluded that duty sel has a to ensure that a notice $65,960.11 $3,281.09 litigation debt and the if the appeal is filed defendant wishes to litigation loan were not immediately pay- appeal.65 attorney op- then has two Further, able. the trial court could have (1) effectively can tions: he volunteer reasonably expense believed that the sum- appellate by signing serve as counsel mary unnecessary contained items. Un- (2) himself, appeal notice of or “the defen- circumstances, der the the trial court could se, pro dant file the notice which reasonably have appellant believed that selves as an indication that trial counsel purpose ap- was for the pursue ap- does not wish to his client’s pointing counsel. peal.”66 Nothing in rules greater Of concern is the cost of the requires retained trial counsel to serve as $65,000 record. If the record costs or appeal counsel on if he sign does not more, there could be a question serious fact, specifically notice.67 In Rule 6.4 bars about whether had the funds to appointed counsel a criminal case from it, pay for especially if payment advance filing a “nonrepresentation” notice but However, required. were appellant failed does not mention retained counsel. Re- to introduce before the trial court compe- tained counsel must file a motion to with- tent evidence of the cost of the draw,68 ordinarily but motion should that the record would paid have to be granted.69 be If question there is a in advance. The motion was not evidence however, indigence, sworn, judge may the trial because it was not and the affida- vits regarding this matter delay were not before leave to withdraw until indigence the trial court at the time of ruling. its proceedings are complete.70 While record from the hearing on indi- Although the trial court within its gence makes it pro- clear that the trial require discretion to appellant’s retained ceedings lengthy, were we are unable to attorneys to remain counsel for the dura- conclude that the trial court abused its dis- tion of indigence hearing, the trial cretion, absent some evidence at court abused its discretion when it denied least a ballpark figure for the cost of the ques- Watts’s motion to withdraw after the record. tion of was determined. The Request
E. to withdraw might situation if been different Finally, agreement Watts had had an appellant’s appel- we address with contention that the trial court abused its lant represent appeal, her on but he did (Tex. 65. Jones v. mg pro 98 S.W.3d appeal that a se notice of combined Crim.App.2003). places awith motion to withdraw defendant, indigent, court on notice that the if (internal omitted). quotation 66. Id. marks counsel, appointed needs at- unless another retained). torney already has been 67. See Rules 6.1-6.6. Axel,
68. Ex Parte 373-374 ("the judge may require 70. Id. at 374 n. 7 1988). (Tex.Crim.App. withdrawing -trial counsel to continue to serve through indigency proceeding, such and with ("But then, now, 69. Id. it was not and is not signing granting hold an order leave to with required appeal that written notice of be done”). draw until that bit of business is counsel, made and thus Volunteer’ to attorney become appeal”; of record on hold- PRICE, practice might concurring opinion J. filed a not. While better JOHNSON, HOLCOMB, and which ap- attorney expressly an exclude COCHRAN, JJ., joined. contract, in a had peals written as Gaither done, retained trial counsel is not bound HERVEY, J., concurring opinion filed a represent appeal defendant absent *14 KEASLER, J., joined. in which to so. agreement do PRICE, J., concurring in which
JOHNSON, HOLCOMB, COCHRAN, and
III. DISPOSITION J.J., joined. summary, hold the of In we that Court agree majority’s I with the conclusions holding erred in that the trial Appeals (1) the that trial court should have allowed adequate (2) failed indi- court to conduct withdraw, to retained counsel the hearing. also hold that the Court gence We the trial court sworn documents before holding appellant appellant enough in that indicate that the had Appeals of erred (3) counsel, money to there retain prima indigence made out a case of facie in the record of how no sworn evidence However, hold purposes. for Rule 20.2 we much the record would cost before the correctly Appeals that the Court of held I court on the motion. trial ruled write the trial abused its discretion court separately emphasize to it to with- permit when refused to Watts may appellant’s indi- court reconsider question was de- indigence draw after the changed if have gence the circumstances cided. ruled, first and there- since trial court judgment The of the Court of may bring appellant fore these part. in in part is reversed affirmed circumstances to changed the trial court’s to case is trial court remanded attention ap- appellant determine whether wishes this I have concern about case. one other so, conviction, judgment and if peal the necessarily it be I do not think that would proceed se or pro whether she wishes as- reasonable for the If so de- with retained counsel. Watts from that the loan Jesse Whitehead sumed consents, appellant he vol- sires and away repaid right ab- did not have to be counsel; oth- unteer remain as retained contrary. sent evidence to erwise, permitted he to withdraw. must be majori- comments, join I With these appel- The trial court is free reconsider ty opinion. 26.04 or lant’s under Article change if Rule 20.2 it finds material J., HERVEY, in which concurring it last circumstances has occurred since Keasler, J., joined. Otherwise, appel- issue. considered the I.B., II.E., I.A., and III. of join parts I judgment from appeal lant’s notice of The discussion opinion. Court’s days conviction be due 30 from will on the opinion II.B. of the Court’s part case, and if date mandate issues of a trial of review appellate standard filed, the appeal is record will
notice determination non-indi- court’s ultimate days mandate.71 due 120 date of unnecessary because the issue is gence uphold the trial court’s
here whether to failed to WOMACK, in the result. determination J. concurred 35.2(b). See Rule a prima indigence, make facie a question Lopez
which is of law. See (Tex.Cr.App. 1997) (McCormick, P.J., dissenting to re discretionary fusal of State’s peti review tion) (prima simply case means there facie is sufficient evidence believed if support particular factfinder will find ing).
And, as to the part discussion in II.D. of *15 opinion the Court’s I what assume be legal issue whether made a prima indigence, I facie would decide that someone who has total $4,069.33
monthly income of cannot estab- a prima lish case of indigence for facie purposes determining tax- whether the
payers should furnish her with a record lawyer.
and a That person may insolvent way because of the she chooses spend money her is irrelevant to the
indigence question. This would make it unnecessary to address the issues dis- in parts
cussed II.A. and II.C. of the opinion. Court’s comments, With these I concur in the judgment. Court’s Virginia PEREZ, Maria Appellant, Texas, Appellee. The STATE of No. 13-02-00422-CR. Texas, Court of Corpus Christi-Edinburg.
March Rehearing April Overruled