Patti Whitehead v. State ( 2002 )

                                   NUMBER 13-02-098-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI B EDINBURG

PATTI WHITEHEAD,                                                              Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

On appeal from the 24th District Court

of Jackson County, Texas

                                   O P I N I O N

                     Before Justices Hinojosa, Castillo, and Baird^[1]

                                   Opinion by Justice Baird    

Appellant was charged by indictment with the offense of theft. Tex. Pen. Code Ann. ' 31.03(e)(4)(A)(f)(1) (Vernon Supp. 2002).  A jury convicted appellant of the charged offense and assessed punishment at ten years confinement in the Texas Department of Criminal Justice--Institutional Division, probated, and a fine of $8,000. The trial judge subsequently entered an order denying appellant indigent status.  That ruling is subject to appellate review.  Abdnor v. Ovard, 653 S.W.2d 793, 794 (Tex. Crim. App. 1983); Hendren v. Paxson, 951 S.W.2d 496, 497 (Tex. App.BEl Paso 1997, orig. proceeding).

I.  Factual Summary.

At trial, appellant was represented by Trent Gaither and Larry Watts.  Following the jury=s verdict, trial counsel filed a document entitled Motion to Withdraw and Request to Proceed in Forma Pauperis.  That motion/request asked the judge to: (1) permit Gaither and Watts to withdraw as counsel of record; (2) find appellant indigent for the purpose of prosecuting her appeal; and, (3) appoint counsel to represent appellant on appeal.  The motion/request also estimated the reporter=s record would cost in excess of $45,000.  This document was signed by Gaither, Watts and appellant. Attached to the motion was an affidavit signed by appellant, an income and expense summary, and net worth statement.

At the hearing on this motion/request, the following was developed. Gaither and appellant=s fee agreement expressly stated that Gaither=s fee did not include representing appellant on appeal. Gaither then offered and the trial judge admitted into evidence appellant=s income and expense summary and net worth statement.  The trial judge then summarily denied appellant indigent status, but permitted Gaither to withdraw.  Gaither then asked the trial judge to provide a reporter=s record without charge pursuant to Rule 20.2 of the Texas Rules of Appellate Procedure.  This request was also denied.  

Watts then requested permission to withdraw.  Specifically Watts stated:  AI don=t have an agreement, nor do I have the skill or ability to represent [appellant] on appeal. ... I have not done a criminal appeal within the last 20 years or longer.@  The trial judge, after determining that the trial lasted 47 days over a span of 108 days then responded:

[During the course of the trial, Watts] would have been consulting with Mr. Gaither, and it being such a long trial, if there is any problem in the trial of the case I=m sure that you would be aware of it, I=m sure if there is a problem Mr. Gaither would have told you about it, so you would know if there is a problem in the trial of the case and what it is and certainly you can go look at a law book on how to appeal a case.^[2]  35

The trial judge then entered a written order permitting Gaither to withdraw as counsel, denying Watts=s request to withdraw as counsel, and denying appellant leave to proceed in forma pauperis.  This order is the subject of this appeal.

II.  Indigency in General.

An indigent defendant, facing the possibility of imprisonment, is entitled to the appointment of counsel.  Gideon v. Wainwright, 372 U.S. 335, 344 (1963).  This fundamental right is codified in articles 1.051 and 26.04 of the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. arts. 1.051, 26.04 (Vernon Supp. 2002).  Additionally, when an appeal is provided by statute, the United States and Texas Constitutions require that indigent defendants be appointed counsel on appeal.  Anders v. California, 386 U.S. 738, 742 (1967); Douglas v. California, 372 U.S. 353, 355-56 (1963); Hogan v. State, 572 S.W.2d 526, 528 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also Tex. Code Crim. Proc. Ann. art. 1.051(d)(1) (Vernon Supp. 2002). Obviously, there can be no effective appeal, and no effective appellate representation, without a clerk=s record and a court reporter=s record.  Stephens v. State, 509 S.W.2d 363, 365 (Tex. Crim. App. 1974); Scott v. State, 80 S.W.3d 184, 195 (Tex. App.BWaco 2002, no pet. h.) (absence of appellate record renders appellant's appeal a meaningless ritual).  Accordingly, Rule 20.2 provides the procedure whereby an indigent defendant can obtain a reporter=s record without charge.  Tex. R. App. P. 20.2; see also Griffin v. Illinois, 351 U.S. 12, 19 (1956) (upon a showing of indigency the trial judge must provide an indigent defendant with an adequate record for appeal); Gray v. State, 928 S.W.2d 561, 562 (Tex. Crim. App. 1996); Williams v. State, 530 S.W.2d 582, 583-84 (Tex. Crim. App. 1975). The purpose of the rule is to provide equal appellate access to indigent defendants whose indigency would otherwise prevent them from obtaining such access.  Rosales v. State, 748 S.W.2d 451, 454 (Tex. Crim. App. 1987).

III.  Indigency Determinations.

As noted above, article 26.04 provides for the appointment of counsel on appeal, and Rule 20.2 provides the mechanism for obtaining an appellate record without charge.  While these two determinations have many common elements, they also involve distinct considerations.  Therefore, we will begin with their commonality, and then address the separate considerations for each.

A.  Commonality.

There is no duty imposed on the trial court to appoint counsel until the defendant shows that he is indigent.  Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988). Consequently, an indigent defendant must manifest his desire to appeal in a manner sufficient to apprise the trial court of the need to appoint appellate counsel.  Ward v. State, 740 S.W.2d 794, 798 (Tex. Crim. App. 1987). Indigent means "a person who is not financially able to employ counsel."  Tex. Code Crim. Proc. Ann. art. 1.051(b) (Vernon Supp. 2002).  An indigency determination is made by looking at the defendant's financial status at the time of appeal, not at the time of trial.  Rosales, 748 S.W.2d at 455 (citing Barber v. State, 542 S.W.2d 412, 413 (Tex. Crim. App. 1976)).  These determinations are made on a case‑by‑case basis. Id.; Abdnor v. State, 712 S.W.2d 136, 141 (Tex. Crim. App. 1986).  Appellate courts employ the abuse of discretion standard of review when reviewing indigency determinations.  Newman v. State, 937 S.W.2d 1, 3 (Tex. Crim. App. 1996).  A trial judge abuses his discretion by acting arbitrarily and unreasonably, without reference to any guiding rules or principles, or is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. Heidelberg v. State, 36 S.W.3d 668, 675 (Tex. App.BHouston [14th Dist.] 2001, no pet.).

A.  Article 26.04.^[3]

A defendant requesting a determination of indigency shall:  (1) complete under oath a questionnaire concerning his financial resources; (2) respond under oath to an examination regarding his financial resources by the judge or magistrate responsible for determining whether the defendant is indigent; or (3) complete the questionnaire and respond to examination by the judge or magistrate.  Tex. Code Crim. Proc. Ann. art. 26.04(n) (Vernon Supp. 2002).  And before making a determination of whether a defendant is indigent, the court shall request the defendant to sign under oath a statement.  Tex. Code Crim. Proc. Ann. art. 26.04(o) (Vernon Supp. 2002).^[4]

No rigid standard exists for determining indigency for the purpose of appointing counsel.  Abdnor, 712 S.W.2d at 141‑42.  Generally, the court must consider only the defendant's personal financial conditions, not those of his parents, other relatives, friends, or employers.  Snoke v. State, 780 S.W.2d 210, 213 (Tex. Crim. App. 1989); Staten v. State, 662 S.W.2d 672, 674 (Tex. App.BHouston [14th Dist.] 1983, no pet.) ("Outside sources such as relatives and even employers are not to be considered unless they are legally bound to pay for defendant's appellate expenses.").  Spouses, however, provide an exception to this general rule.  Butler v. State, 506 S.W.2d 902, 903 (Tex. Crim. App. 1974); Ex parte Mays, 152 Tex. Crim. 172, 212 S.W.2d 164, 167 (1948); see also United States v. Stone, 298 F.2d 441, 441 (4th Cir.1962); United States v. Sampson, 161 F. Supp. 216, 217 (D.C.1958); State v. Rutherford, 63 Wash.2d 949, 389 P.2d 895, 954 (1964), overruled on other grounds State v. Hill, 123 Wash.2d 641, 870 P.2d 313 (1994).  Especially where there is no evidence of a pending divorce or estrangement between the spouse and the defendant.  Rosales, 748 S.W.2d at 457.  Additionally, the trial judge should consider the defendant=s income, source of income, assets, property owned, outstanding obligations, necessary expenses, and the number and ages of dependents.  Tex. Code Crim. Proc. Ann. art. 26.04(m) (Vernon Supp. 2002).  The trial judge may consider any other evidence relevant to the issue of indigence.  Gonzales v. State, 8 S.W.3d 679, 680 (Tex. App.BAmarillo 1999, no pet.).

Finally, even though there has been retained counsel at the trial, said counsel is not bound to handle the appeal without a fee.  Conrad v. State, 537 S.W.2d 755, 757 (Tex. Crim. App. 1976).

C.  Rule 20.2.

A defendant requesting a reporter's record without charge bears an initial burden of raising the issue of indigency.  Warminski v. Dear, 608 S.W.2d 621, 622-23 (Tex. Crim. App. 1980); Staten, 662 S.W.2d at 672.  To meet this burden of production, the defendant must:  (1) exercise due diligence in asserting his indigence by timely filing the required motion and affidavit; and, (2) present evidence to sustain the assertion of indigence in the hearing on the motion.  Tex. R. App. P. 20.2 (motion and affidavit must be filed within the time for perfecting appeal); Gray, 928 S.W.2d at 562.  Our law is Aunmistakably clear@ that an appellant who timely files an indigency affidavit has exercised the requisite due diligence.  Gray, 928 S.W.2d at 562 (citing Abdnor, 712 S.W.2d at 142). Once this initial burden of production is met, the onus shifts to the State to persuade the trial judge that the defendant is not, in fact, indigent.   If the defendant makes a prima facie showing of indigency, and the State does not produce evidence to the contrary, the defendant is entitled to the reporter=s record without charge.   Snoke, 780 S.W.2d at 213‑214; Newman, 937 S.W.2d at 3.  Such allocation of burdens best serves to protect the truly indigent defendant's right to effective assistance of counsel on appeal.  Snoke, 780 S.W.2d at 213.

IV.  Application and Analysis.

Essentially, appellant contends the trial judge erred in not following article 26.04 and Rule 20.2, and requests that we order the trial judge to fully comply with those provisions.  For the following reasons, we agree.

As noted above, the Motion to Withdraw and Request to Proceed in Forma Pauperis specifically asked the judge to: (1) permit Gaither and Watts to withdraw as counsel of record; (2) find appellant indigent for the purpose of prosecuting her appeal; and, (3) appoint counsel to represent appellant on appeal.  We hold this motion/request, supported by an affidavit and two financial statements, was clearly sufficient to manifest appellant=s desire to appeal, and to apprise the trial judge of the need to appoint appellate counsel.  Ward, 740 S.W.2d at 798.  We further hold this document was sufficient to substantially comply with the requirements of article 26.04. Therefore, the trial judge was required under article 26.04 to make a determination as to appellant=s indigency status.  However, the trial judge wholly failed to make any inquiry, or to consider any of the factors prescribed by article 26.04.   See Tex. Code Crim. Proc. Ann. art. 26.04(o) (Vernon Supp. 2002).

Nevertheless, the trial judge recognized that appellant still needed the assistance of counsel.  To accomplish this, the trial judge refused to permit Watts to withdraw. This ruling was based upon the faulty premise that since Watts had been retained as trial counsel he was bound to handle the appeal.  This ruling is clearly wrong, and flies in the face of Conrad, 537 S.W.2d at 757. The trial judge=s ruling is even more baffling in light of Watt=s self-professed incompetence.^[5]  By failing to comply with article 26.04 and refusing to permit Watts to withdraw, the trial judge>s actions were arbitrary, unreasonable, without reference to any guiding rules or principles, and so clearly wrong as to lie outside the zone of reasonable disagreement.  Accordingly, we hold the trial judge abused his discretion.

Rule 20.2 requires appellant to exercise due diligence in asserting her indigence by timely filing the required motion and affidavit, and that she present evidence to sustain her assertion of indigence.  Gray, 928 S.W.2d at 562.  We hold the filing of the aforementioned motion/request, supporting affidavit, and financial statements constitutes due diligence.^[6]  Id. Additionally, we hold that by admitting into evidence her income and expense summary and net worth statement, appellant sustained her burden of production and established a prima facie case of indigency.  Because the State produced no evidence contrary to this prima facie showing, appellant was entitled to have the reporter=s record furnished at no charge.  Newman, 937 S.W.2d at 3; Snoke, 780 S.W.2d at 213‑214. Consequently, we hold the trial judge abused his discretion in denying appellant=s request under 20.2.

V.  Conclusion.

Having found the trial judge abused his discretion in his ruling on appellant=s requests for the appointment of counsel, and for a free reporter=s record, and on Watts request to withdraw, we remand this case to the trial court and order the trial judge to immediately conduct a hearing to comply with article 26.04 and Rule 20.2.^[7]

On remand, the trial court may conclude that appellant is or is not indigent. Scott, 80 S.W.3d at 198.  If the court finds that she is not indigent, appellant may appeal that determination.  However, if the court finds that appellant is indigent, the court must appoint counsel and direct the court reporter to file the reporter's record in the appeal on the merits without charge.  Id. If the court so finds, then it shall cause a supplemental clerk's record to be filed in the appeal on the merits containing a signed, written order or orders to this effect.  Id.

We reverse the order appealed from, and remand this cause for further proceedings consistent with this opinion.  Scott, 80 S.W.3d at 199.

CHARLES F. BAIRD

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of October, 2002.

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^[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2] The trial judge who presided over this hearing was not the same trial judge who presided over appellant=s trial.

^[3]  Article 26.04 was substantially revised by the 77th Legislature and those revisions became effective January 1, 2002.  To simplify matters, the citations in this opinion are to the revised statute. Other than renumbering the statute, none of the recent revisions affect our consideration of appellant=s appeal.  Tex. Code Crim. Proc. Ann. art. 26.04 (Vernon Supp. 2002).

^[4]  Subsection (o) goes so far as to suggest the substantial form for such a statement. Despite the plain language of subsection (o), the Court of Criminal Appeals has held there is no strict requirement that an affidavit be filed so long as the defendant makes Ahis alleged indigency known to the trial court in a timely manner.@  Rosales v. State, 748 S.W.2d 451, 454 n. 2 (Tex. Crim. App. 1987) (citing Harriel v. State, 572 S.W.2d 535, 537 (Tex. Crim. App. 1978)).

^[5]  The State argues: AIt does not appear that the trial court >ordered= Watts to act as counsel on appeal, the court simply refused to allow him to withdraw as counsel for appellant.@  State=s br. pp. 11-12.  This argument is simply not supported by the record.  As noted in part I, supra, the trial judge specifically told Watts he could Ago look at a law book on how to appeal a case.@  Moreover, since the motion for new trial had already been denied, we are at a loss as to why Watts would be required to remain as counsel unless for appellate purposes.

^[6]  The State argues the motion/request and supporting affidavit is not sufficient. In support of this argument, the State relies upon Nelson v. State, 6 S.W.3d 722 (Tex. App.BWaco 1999, no pet.).  We disagree for three reasons.  First, Nelson is not on point because in that case the defendant failed to file an affidavit.  Id. at 724.  Second, the State did not challenge appellant=s lack of due diligence in the trial court. Therefore, this argument has been waived for appellate purposes.  Skidmore v. State, 808 S.W.2d 708, 710 (Tex. App.BTexarkana 1991, no pet.).  Third, the motion/request specifically asks the trial judge Ato find [appellant] indigent for purposes of proceeding to the appeal of her conviction.@  The motion further refers to the estimated cost of the reporter=s record.  The affidavit states she is the petitioner in the motion/request, and that the information in the income and expense summary and net worth statements accurately reflects appellant=s financial status.  We believe the document is certainly sufficient to establish appellant=s due diligence.

^[7]  If appellant is not represented by retained counsel at this hearing, the trial judge shall appoint counsel to represent appellant during this proceeding.