Arthelia Juaniece Burch v. State ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-518 CR ____________________

ARTHELIA JUANIECE BURCH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 258th District Court Polk County, Texas Trial Cause No. 16,037

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OPINION  

A jury found Arthelia Juaniece Burch guilty of murder. The jury found that the defendant caused the death under the immediate influence of sudden passion arising from an adequate cause, assessed punishment at ten years of confinement in the Texas Department of Criminal Justice, Institutional Division, and recommended community supervision. Burch filed a motion for a free reporter's record with her notice of appeal. The trial court denied the motion after conducting a hearing. The sole point of error raised on appeal contends the trial court erred when it failed to grant Burch's motion for a free reporter's record on appeal.

A defendant claiming indigent status on appeal must file a motion and affidavit with her notice of appeal. Tex. R. App. P. 20.2. The defendant must then prove her indigence at a hearing. Abdnor v. State, 712 S.W.2d 136, 140-41 (Tex. Crim. App. 1986). Once a prima facie showing of indigency is made, the defendant is entitled to the requested record unless evidence is offered which refutes her claim. Snoke v. State, 780 S.W.2d 210, 213 (Tex. Crim. App. 1989). Considerations in a determination of indigence include "the defendant's income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant." See Tex. Code Crim. Proc. Ann. art. 26.04(m) (Vernon Supp. 2002) (statute setting procedures for appointing counsel). The court must consider only the defendant's personal financial conditions, not those of her parents. Snoke v. State, 780 S.W.2d at 213. We review the judge's ruling for abuse of discretion on a case-by-case basis. Newman v. State, 937 S.W.2d 1, 3 (Tex. Crim. App. 1996).

Burch's motion for a free reporter's record states that she is unable to pay for or give security for the reporter's record, but provides no allegations regarding her income, her expenses, or the cost of the record. The affidavit attached to the motion is signed by Burch's attorney, and states that the allegations of the motion are true and correct, but does not provide any financial information. The motion and affidavit were not introduced as evidence at the hearing.

Although the appellant was present at the indigency hearing, she did not testify. The sole witness at the hearing was the appellant's mother, Rhonda Kay Burch Henderson. At the time of the hearing, Burch was serving 180 days in the Regional Intermediate Sanction Facility as a condition of community supervision. To Henderson's knowledge, Burch does not own any real property, stocks, or bonds. There is no evidence, other than the existence of their familial relationship, that Henderson would have any personal knowledge of Burch's finances. Henderson did testify, however, that Burch does not own any CD's, bonds, or savings accounts, and testified that Burch is presently unemployed. She does not have a car. The record would cost three thousand or four thousand dollars. Counsel had charged $10,000 to represent Burch at trial, but had accepted $3,400, and was representing her on appeal for free. Henderson acknowledged that Burch would be required to get a job while on community supervision, but Burch had not secured future employment.   

The record is absolutely silent regarding how much money, in cash or checking accounts, the appellant controlled or possessed, how much credit she could secure, whether she was married and had access to her spouse's assets, whether she owned any property that could be liquidated or used as collateral for the record. Since Burch was unemployed and did not own a car, it is unlikely that she had access to thousands of dollars to pay the court reporter. There is, however, absolutely no evidence of her expenses. Absent evidence of the value of the appellant's assets and the extent of her liabilities and living expenses, Burch failed to substantiate her claim of indigency. The trial court ruled within its discretion. The point of error is overruled. The judgment is affirmed.

AFFIRMED.

PER CURIAM

Submitted on July 2, 2002

Opinion Delivered July 10, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.