Richard Scott v. State ( 2004 )

Richard Scott v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-02-00350-CR

     RICHARD SCOTT,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 00-06-07085

MEMORANDUM OPINION

      Richard Scott appeals the court’s finding that he is not indigent for purposes of a free appellate record and appointment of appellate counsel. Scott presents three issues. We will affirm.

      A jury convicted Scott of securing the execution of a document by deception. On appeal, Scott sought a free appellate record and the appointment of counsel due to his alleged indigence. The trial court denied Scott’s indigence claim because Scott refused to testify under oath or by affirmation because of his religious beliefs. This Court reversed the indigence ruling and remanded the matter to the trial court for further consideration. See Scott v. State, 80 S.W.3d 184 (Tex. App.—Waco 2002, pet. ref’d).

      On remand, the trial court received testimony and evidence from Scott and others. Scott’s mother-in-law testified that he owns a home which she gave him and which is unencumbered. One of Scott’s daughters lives in this home with her husband. The State presented evidence that the appraised value of this home is $26,220. The trial court signed an order denying Scott’s indigence claim because: (1) he owns property worth more than $20,000; and (2) he has made no effort to seek employment.

      Scott contends on appeal that the court abused its discretion because: (1) selling the house would violate his religious beliefs that he should not abandon needy members of his family and congregation; (2) the indigence hearing should have been postponed because he was in the midst of a 34-day fast; and (3) seeking employment would be contrary to his ministry and calling.

      Scott argues in his second issue that the court should have inquired into his well-being sua sponte and postponed the hearing because he was in the midst of a 34-day fast. However, when the court asked Scott if he was ready to proceed, he answered in the affirmative. Accordingly, no abuse of discretion is shown. See Prytash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). We overrule Scott’s second issue.

      Scott claims in his first issue that compliance with the court’s implicit requirement that he sell the house violates his religious beliefs. Scott testified that he cannot use the house as collateral for a loan because he refuses to use a social security number for identification purposes and, therefore, the only way he can use the house to pay his appellate costs would be by “selling it and putting indigent people out on the street, which is contrary to my ministry.”

      We note, however, that the court expressly told Scott that he was not being ordered to sell the house. Cf. Newman v. State, 937 S.W.2d 1, 2-3 (Tex. Crim. App. 1996). Scott’s First Amendment right to choose to use his assets for religious purposes does not trump his obligation to pay appellate costs anymore than it trumps his obligation to pay sales taxes when he makes retail purchases. See e.g. Bowen v. Roy, 476 U.S. 693, 712, 106 S. Ct. 2147, 2158-59, 90 L. Ed. 2d 735 (1986) (incidental burden imposed on religious exercise by requirement that welfare applicant provide social security number does not violate Free Exercise Clause); see also Murdock v. Pa., 319 U.S. 105, 112, 63 S. Ct. 870, 874, 87 L. Ed. 1292 (1943) (religious groups are not exempt from all financial burdens of government).

      As the Supreme Court stated in Bowen, a citizen “may not use the Free Exercise Clause to demand Government benefits, but only on [his] own terms.” 476 U.S. at 711-12, 106 S. Ct. at 2158. This reasoning applies with equal force to Scott’s claim. Accordingly, we overrule Scott’s first issue.

      In view of our disposition of Scott’s first issue, we need not address his third issue. See Tex. R. App. P. 47.1.

      We affirm the judgment.

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed March 31, 2004

Do not publish

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