Suzanna Eckchum A/K/A Susan Eckhert v. State ( 2015 )

ACCEPTED
03-15-00107-CV
4473091
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/12/2015 11:58:11 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00107-CV
__________________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRD AUSTIN, TEXAS
DISTRICT OF TEXAS 3/12/2015 11:58:11 AM
__________________________________________________________
JEFFREY D. KYLE
Clerk
SUZANNA ECKCHUM,
Appellant
v.
THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM,
Appellee
__________________________________________________________
On Appeal from the County Court at Law No. 2 of Comal County, Texas
Cause No. C2014-1690C
Honorable Charles Stephens, Judge Presiding
__________________________________________________________
STATE’S RESPONSE TO APPELLANT’S MOTION TO CHALLENGE
TRIAL COURT ORDER SUSTAINING CONTEST TO APPELLANT’S
AFFIDAVIT OF INDIGENCY
__________________________________________________________
Jennifer Tharp
Criminal District Attorney
By
Joshua D. Presley
SBN: 24088254
Assistant District Attorney
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: preslj@co.comal.tx.us
Attorney for the State
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TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW THE STATE OF TEXAS, by and through its Assistant
District Attorney, and files this its Response to Appellant’s Motion in the above-
captioned cause. The State asks that the Court deny Appellant’s Motion, and would
show the following:
Statement of Facts
On January 22, 2015, the trial court entered a Stalking Protective Order
against Appellant (C.R. at 18-21). Appellant subsequently filed a form Affidavit of
Inability to Pay Court Costs on February 12, 2015 (id. at 22). She left significant
portions of that Affidavit blank, and never swore that she had “no property of any
value” (id. at 22-23). Court Reporter Dana Dance timely filed her contest on
February 23, 2015 (2nd Supp. C.R. at 7). In it, Ms. Dance observed that Appellant
had failed to comply with the requirements of Texas Rule of Appellate Procedure
20.1(b), by failing to include complete information about her income, personal
property and cash (id. at 7-8). Counsel for the court reporter informed the trial
court at the February 28th hearing that he had emailed the contest and the notice of
the hearing to Appellant’s email address, which was listed on her affidavit (R.R. at
3). After the trial court sustained the contest, Appellant filed an unverified,
unsworn Motion to Reconsider on March 5th (2nd Supp. C.R. at 13). Appellant
then filed the instant Motion with this Court on March 6 th.
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I. Standard of Review
An appellate Court will “review rulings on a request to proceed as indigent
for abuse of discretion.” Donalson v. Barr, 86 S.W.3d 718, 719 (Tex. App.—
Houston [1st Dist.] 2002, no pet.). Courts will not reverse a trial court’s ruling
sustaining a contest if the trial court reached the right result, even if it did so for the
wrong reasons. Id. at 720.
II. Appellant’s Bare “Pauper’s Affidavit” Is Insufficient to Invoke Texas Rule
of Appellate Procedure 20.1
“[T]he fundamental requirement for asserting indigence has remained the
same: the applicant must declare to the court, by affidavit, an inability to pay any,
or the ability to pay only some, of the costs of appeal.” Higgins v. Randall County
Sheriff's Office, 257 S.W.3d 684, 686 (Tex. 2008). Appellant has filed a form
Affidavit of Inability to Pay Court Costs instead of an Affidavit of Indigency
complying with the Texas Rules of Appellate Procedure (see C.R. at 22). Not only
has Appellant failed to include the additional required information for an appellate
affidavit, nowhere in her form affidavit or in her own hand does Appellant declare
her inability to pay the costs of the appeal. Likewise, the Appellant did not request
through the form language or in her own writing that the trial court allow
Appellant to proceed with the appeal without the advance payment of costs (see id.
at 22-23). Courts generally cannot grant relief which a party has not requested.
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Mauldin v. MBNA Am. Bank, N.A., 2-07-208-CV, 2008 WL 4779614, at *4 (Tex.
App.—Fort Worth Oct. 30, 2008, no pet.) (mem. op., not designated for
publication) (citing Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185, 186 (Tex.
2000).
This Court has apparently not decided whether a “pauper’s affidavit”
substantively suffices to invoke Texas Rule of Appellate Procedure 20.1. See
Houston v. Ally Fin., Inc., 03-14-00342-CV, 2014 WL 4536624, at *1 (Tex.
App.—Austin Sept. 8, 2014, no pet.) (mem. op., not designated for publication).
Where the Appellant has filed such an affidavit which completely omits statutorily-
required information (discussed infra), does not declare her inability to pay costs
on appeal, and does not even request relief from or make any reference to the
advance costs of the appeal, this Court should find Appellant’s bare “pauper’s
affidavit” without more, to be insufficient to invoke Rule 20.1.
III. Appellant Failed to Include Statutorily-Required Information in Her
Affidavit of Indigence
In the alternative, in the event the Court finds the bare “Pauper’s Affidavit”
sufficient to invoke Texas Rule of Appellate Procedure 20.1, Appellant’s affidavit
is insufficient under the express terms of that Rule. In order to proceed without the
advance payment of costs, an appellant must meet several requirements:
[a] party who cannot pay the costs in an appellate court may proceed
without advance payment of costs if:
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(A) the party files an affidavit of indigence in compliance
with this rule;
(B) the claim of indigence is not contestable, is not
contested, or, if contested, the contest is not sustained by
written order; and
(C) the party timely files a notice of appeal.
Tex. R. App. P. 20.1(a)(2) (West, Westlaw through 2013 Sess.) (emphasis added).
The rule further imposes mandatory requirements for the affidavit itself:
Contents of Affidavit. The affidavit of indigence must identify the
party filing the affidavit and must state what amount of costs, if any,
the party can pay. The affidavit must also contain complete
information about:
...
(2) the income of the party’s spouse and whether that income is
available to the party;
(3) real and personal property the party owns;
(4) cash the party holds and amounts on deposit that the party may
withdraw;
(5) the party’s other assets;
...
(9) the party’s ability to obtain a loan for court costs;
(10) whether an attorney is providing free legal services to the party
without a contingent fee;
(11) whether an attorney has agreed to pay or advance court costs; and
(12) if applicable, the party’s lack of the skill and access to equipment
necessary to prepare the appendix, as required by Rule 38.5(d).
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Tex. R. App. P. 20.1(b) (emphasis added).
Appellant’s affidavit filed with the trial court does not appear to contain any
of the above-listed mandatory information (see C.R. at 22-23). This is despite the
fact that there were spaces in the form affidavit for at least some of the
aforementioned items of information, which the Appellant seems to have ignored.
(see id. at 23, § 6). Appellant claims in her motion that she left these spaces blank
“because she has none of these items.” Appellant’s Motion at 5. However, the rule
required Appellant to submit complete information in the form of an affidavit to
the trial court. See Tex. R. App. P. 20.1(b). Notably, Appellant answered several
other questions with a “0” to indicate she did not have various items in question,
while glaringly omitting any information from the section related to her cash, bank
accounts, vehicles, real and personal property (C.R. at 23). Even now, the affidavit
attached to Appellant’s motion – which was not subject to cross-examination
following the Reporter’s contest or submitted to the trial court prior to its order –
fails to state what cash Appellant has on hand. Affidavit Attached to Motion at 1-2;
see In re C.H.C., 331 S.W.3d 426, 428, 430 (Tex. 2011) (where that appellant filed
an amended affidavit in the trial court - prior to the order - which was not
contested).1 It is also noteworthy that the trial court was aware Appellant clearly
1
Appellant filed a copy of her Motion and attached affidavit with the trial court on March 7,
2015 (2nd Supp. C.R. at 21). Out of an abundance of caution, the State will file a contest to the
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had the funds necessary to move several times – to Austin, Nashville, and
Wimberley – in the course of following the Applicant (C.R. at 8-9). See Higgens v.
Randall County Sheriff’s Office, 257 S.W.3d 684, 692 (Tex. 2008) (Green, J.,
dissenting) (“[I]f the courts allow the privilege granted [by the indigent cost rules]
to be abused by those who, in fact, ought to pay, this may lead to the abolition of
the exemption.”) (citing Pinchback v. Hockless, 164 S.W.2d 19, 20 (1942)).
Appellant cites several cases in attempting to argue she was not required to
address every factor in Rule 20.1(b), including Moreno v. Perez. Appellant’s
Motion at 5. Appellant’s cited cases are readily distinguishable. In Moreno, the
contest did not challenge any of the particulars in that appellant’s affidavit. Moreno
v. Perez, 363 S.W.3d 725, 743 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Additionally, at a hearing on the appellant’s affidavit , the appellant presented
evidence of the Rule 20.1(b) factors. Id. at 743-44. Her attorney further testified
that she was IOLTA eligible, a fact the appellate court found particularly
significant. Id. at 744 (“Ignoring the significance of the testimony regarding
[appellant’s] IOLTA eligibility, however, would elevate form over substance—
something the supreme court has admonished is particularly inappropriate when
assessing indigence.”); see also Tex. R. App. P. 20.1(a)(1) (affidavits accompanied
by IOLTA certificates may not be contested). Moreno cited Higgens for the
attached affidavit by March 13, 2015, and request that the Clerk’s Office forward this contest to
the Court in a supplemental record.
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proposition that an affidavit need not specifically address all the items enumerated
in Rule 20.1(b). Id. at 742.
However, the holding in Higgins was in the limited context of uncontested
affidavits of indigence. See 257 S.W.3d at 686 (where the Court expressly
“consider[ed] the effect of incomplete compliance with Rule 20.1(b) when an
affidavit of indigence is uncontested.”). The Court repeatedly stressed the fact that
no contest was filed. See, e.g., id. (“No contest was filed to [appellant’s]
affidavit.”), id. at 688 (“Importantly, neither the clerk, the court reporter, nor any
party challenged [appellant’s] claim of indigence by filing a contest to his affidavit,
as subsection (e) specifically allows.”); see also Tex. R. App. P. 20.1(f) (where no
contest is filed, “no hearing will be conducted, the affidavits allegations will be
deemed true, and the party will be allowed to proceed without advance payment of
costs.”); but see Tex. R. App. P. 20.1(g) (“If a contest is filed, the party who filed
the affidavit of indigence must prove the affidavit’s allegations.”). The fact that the
appellant’s affidavit was uncontested – especially in light of Rule 20.1(f) – was
key to the Court’s ultimate holding: “[the appellant’s] affidavit adequately
explained that he is unable to pay the required filing fee and, as no challenge was
made to his assertion of indigence, [the appellant] is entitled to proceed without
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advance payment of costs.” Higgins, 257 S.W.3d at 689 (emphasis added); see also
id. at 688.2
Appellant’s allegations in her contested affidavit may not be deemed true
under Rule 20.1(f), nor may she be “allowed to proceed without advice payment of
costs” under that rule. Furthermore, Appellant did not prove the allegations in her
contested affidavit as required by Rule 20.1(g). Accordingly, in light of the
express, mandatory requirements of Rule 20.1(b) – and in light of Appellant’s
failure to correct all of the defects in the affidavit – the trial court’s ruling on the
timely contest to the affidavit should be upheld.
IV. Appellant Has Not Rebutted the Presumption of Receipt of Electronic
Service and the Trial Court Could Shorten the Notice for the Hearing
Texas Rule of Civil Procedure 21a now provides for electronic service, and
states that service is complete on transmission of the document to the serving
party’s electronic service provider. Tex. R. Civ. P. 21a(a), (b)(3). Appellant
acknowledges a rebuttable presumption of receipt arises when a notice is properly
addressed and mailed. Appellant’s Motion at 7. This rebuttable presumption should
likewise exist for emailed notices. See, e.g., American Boat Co., Inc. v. Unknown
Sunken Barge, 418 F.3d 910, 914 (8th Cir. 2005) (“a presumption of delivery
2
Appellant also cites In re C.H.C. for the proposition that she is not required to address every
factor in 20.1(b); however, that case likewise involved an affidavit of indigence which was not
timely contested. 331 S.W.3d at 428.
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should apply to e-mails. ‘A jury is permitted to infer that information sent via a
reliable means-such as the postal service or a telegram-was received.’ Kennell v.
Gates, 215 F.3d 825, 829 (8th Cir.2000). We have held that there is ‘no principled
reason why a jury would not be able to make the same inference regarding other
forms of communication—such as facsimiles, electronic mail, and in-house
computer message systems—provided they are accepted as generally reliable and
that the particular message was properly dispatched.’”); Abdullah v. Am. Exp. Co.,
3:12-CV-1037-J-34MCR, 2012 WL 6867675, at *5 (M.D. Fla. Dec. 19, 2012),
report and recommendation adopted, 3:12-CV-1037-J-34MCR, 2013 WL 173225
(M.D. Fla. Jan. 16, 2013) (“While this case deals with electronic mail rather than
mail sent through the U.S. Postal System, the undersigned sees no reason why the
same presumption of delivery would not be applicable.”).
In addition to the certificate of service, at the hearing on the contest, counsel
for the court reporter informed the trial court that he had emailed the contest and
the notice of the hearing to Appellant at the address Appellant listed on the
affidavit (R.R. at 3). This was in addition to sending the notice through the postal
service (id.). Because counsel sent the email notice to Appellant at the address she
herself provided, a rebuttable presumption should arise that she received said
notice. Furthermore, while Appellant claims in her motion that she had “no notice”
until after the hearing, the motion itself is not sworn or verified. Appellant’s
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Motion at 7. In the affidavit attached to Appellant’s Motion, Appellant never
swears she had no notice of the hearing; she refers only to the first-class and
certified-mail notices, and makes no mention whatsoever of the email notice.
Application Attached to Appellant’s Motion at 1. Appellant never claims in the
affidavit to have had no notice until after the hearing. Id. Even if she had, that
would not be sufficient to create a material issue of fact. See Abdullah, 2012 WL
6867675, at *5 (“the mere statement in his affidavit that he did not receive the
email… did not rise to the level necessary to rebut the presumption of receipt….”).
Appellant has failed to rebut the presumption that she received the emailed notice
and contest.
As to the general three-day notice requirement, the trial court could, in its
discretion, shorten the time for notice of the hearing. Texas Rule of Civil
Procedure 21 generally requires three days’ notice of a hearing, “unless otherwise
provided by these rules or shortened by the court.” Tex. R. Civ. P. 21. Appellate
courts will review a trial court’s decision to shorten the length of notice under an
abuse-of-discretion standard. In re C.S., 264 S.W.3d 864, 871 (Tex. App.—Waco
2008, no pet.).
In the Waco court of appeals case In re C.S., the appellees had filed a motion
to dismiss and the notice of the hearing in the trial court on August 6 th. Id. The
hearing was conducted on August 8th over the appellant’s objection. Id. The
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appellees had earlier informed the appellant they would be filing the motion,
though at the time, they told him the hearing would be on August 22 nd. Id. Even
though he would ordinarily have been entitled to six days’ notice, the court of
appeals overruled appellant’s objection to only having two days’ notice of the
hearing. Id. The court noted the appellant had yet to identify additional facts which
would have changed the outcome. Id.
In the instant case, Rule 20.1 sets relatively short deadlines, including the
time to hold hearings on contests to affidavits. Tex. R. App. P. 20.1(e), (i). The
form affidavit – which Appellant partially filled out and filed on February 12th –
explicitly informed her that “[t]he court may order you to answer questions about
your finances at a hearing. At that hearing you will have to present evidence to the
judge of your income and expenses….” (C.R. at 22). As noted supra, Appellant did
not appear to prove the allegations in her contested affidavit as required by Rule
20.1(g), and even now has not stated what amount of cash she has on hand. In any
event, the trial court could choose to disbelieve Appellant’s assertions, especially
in light of the fact that she apparently had the resources to repeatedly move – from
Austin, to Nashville, to Wimberley – in the course of following the Applicant
(C.R. at 8-9).
In the context of the sharp time constraints imposed by Rule 20.1, Appellant
was aware from the notice in the form affidavit she filed on February 12th that she
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might have to appear at a hearing and prove her allegations. Appellant
presumptively received the contest and notice two days before the hearing. She
claims to have been unemployed for some time, and even if she had some other
scheduling conflict, at the very least she should have called and informed the court.
In light of the foregoing, the trial court did not abuse its discretion in shortening
the time to conduct the hearing from three days to two.
V. Remedies
The Texas Supreme Court has held that courts must give an appellant a
reasonable time to correct a defect in an affidavit. Higgins v. Randall Cnty.
Sheriff’s Office, 193 S.W.3d 898, 899-900 (Tex. 2006) (per curiam). In the instant
case, the Appellant submitted a Motion to Reconsider to the trial court on March 5,
2015, eight days after the February 25th order was signed (2nd Supp. C.R. at 13; 1st
Supp. C.R. at 4). The motion was not sworn, nor did it contain an affidavit from
Appellant correcting the defects highlighted by the contest (2nd Supp. C.R. at 13).
Because Appellant did not submit such evidence to the trial court within a
reasonable amount of time – despite having time to prepare the Motion to
Reconsider – the trial court’s ruling should be sustained, Appellant’s instant
motion in this Court should be denied, and Appellant should be ordered to pay the
costs of her appeal.
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In the alternative, the Court should deny the instant motion to prevent its
being granted by operation of law. See Tex. R. App. P. 20.1(j)(4). The Court might
then remand the case with orders for the trial court to hear evidence on the contest
filed related to the subsequent affidavit attached to the copy of this motion
Appellant filed in the trial court on March 7, 2015. Although the State would
prefer denial of the instant motion to ensure compliance with Rule 20.1(j)(4), the
Court may also have the authority to remand the case to hear further evidence on
the contest and affidavit without ruling on the motion despite the rule. See
Houston, 2014 WL 4536624, at *1 (where this Court abated and remanded another
contest for the district court to hear evidence, though the exact procedural history
is not entirely clear).
Finally, in the event the Court decides against the outright denial of the
motion or a remand of the case for further evidence, the Court may require the
Appellant to file a complete affidavit to comply with the mandatory requirements
of Texas Rule of Appellate Procedure 20.1(b). However, this alternative would
relieve Appellant of her burden to prove her allegations at a hearing, subject to
cross-examination.
VI. PRAYER
WHEREFORE, PREMISES CONSIDERED, the State respectfully prays
that Appellant’s Motion be, in all things, DENIED. The State further prays that the
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trial court’s ruling be sustained and that Appellant be ordered to pay the costs of
her appeal. In the alternative, the State prays that the Motion be, in all things,
DENIED, but the cause be remanded for a hearing regarding the subsequent
contest. The State further alternatively prays that the Court remand the case to the
district court to hear additional evidence on the contest. As an alternative of last
resort, the State prays that the Court order Appellant to file an affidavit which fully
complies with Tex. R. App. P. 20.1. The State also prays for all relief, both special
and general, in law and in equity, to which it may be entitled.
Respectfully submitted,
/s/ Joshua D. Presley
Joshua D. Presley
SBN: 24088254
preslj@co.comal.tx.us
Comal Criminal District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Ph: (830) 221-1300 / Fax: (830) 608-2008
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CERTIFICATE OF SERVICE
I, Joshua D. Presley, Assistant District Attorney for the State of Texas,
Appellee, hereby certify that a true and correct copy of this State’s Response to
Appellant’s Motion has been delivered to Appellant SUZANNA ECKCHUM’s
attorney of record in this matter:
Mysha Lubke
mysha.lubke@bakerbotts.com
98 San Jacinto Blvd., Suite 1500
Austin, TX 78701
Counsel for Appellant on Appeal
As well as to the attorney of record for Court Reporter DANA DANCE:
James S. Bettersworth
bettersworth@bettersworthlaw.com
The Bettersworth Law Firm
110 W. Faust Street
New Braunfels, TX 78130
by electronic mail service through efile.txcourts.gov to the above-listed email
addresses, this 12th day of March, 2015.
/s/ Joshua D. Presley
Joshua D. Presley
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