Jose O. Murgia, Jr. v. State of Texas ( 2008 )

Opinion filed January 31, 2008

Opinion filed January 31, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00335-CR

                                                    __________

                                   JOSE O. MURGIA, JR., Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 39th District Court

                                                       Stonewall County, Texas

                                                     Trial Court Cause No. 1840

                             O P I N I O N   A S   T O   I N D I G E N C Y   A P P E A L

The jury convicted Jose O. Murgia, Jr.^[1] of assault on a public servant and assessed his punishment at confinement for five years and a $5,000 fine.  Appellant appeals both the merits of his conviction and the trial court=s denial of his motion for a free reporter=s record.  This  opinion addresses only the issues appellant raises concerning the trial court=s denial of his motion for a free record.  We affirm the order.

The record reflects that appellant has been represented by counsel at all stages of the proceedings in the trial court and that counsel was not and has not been appointed.  Appellant=s retained counsel withdrew on March 29, 2007, and appellant is representing himself.

On December 13, 2006, the trial court held a hearing on appellant=s counsel=s motion for a free reporter=s record on the merits.  The trial court denied the motion finding that appellant was not indigent with regard to the reporter=s record.  Both a clerk=s record and a reporter=s record concerning the motion for a free reporter=s record have been filed in this court.

Appellant=s brief concerning his appeal from the trial court=s denial of the motion was first due to be filed in this court on or before May 30, 2007, thirty days after the date the reporter=s record from the motion hearing was filed.  After various extensions, this court abated the appeal on October 11, 2007, and directed the trial court to conduct a hearing pursuant to Tex. R. App. P. 38.8(b).  The trial court again heard evidence concerning appellant=s financial situation and determined that appellant was not indigent, that he did wish to continue both of his appeals, and that he had failed to make the necessary arrangements for the filing of either of his briefs.  Appellant was directed to file his brief on or before January 4, 2008.  Rule 38.8(b)(4).

The record from the motion hearing reflects that appellant was employed and earned $4,224 gross a month.  Ester Murgia testified that she had been married to appellant for ten years and that they had six children living with them.  Ester stated that she was the one who paid the family=s bills. Appellant=s take-home pay was approximately $3,400 a month.  The couple was buying their home and paid $277.36 a month on their mortgage.  Property taxes for the year totaled $167.23 for school taxes and $220.04 for other taxing entities.  She paid $56 a month for home insurance, approximately $100 a month for propane,  and between $300 - $400 on electricity each month.  The family paid for a home telephone and for two cell phones.  The water bill was approximately $100 a month.  The couple owned a Suburban that was paid for and an Avalanche that they made $468 a month payments on.  Ester testified as to other monthly expenses including $200 for gas, $68 for cable, $600 in groceries, and $300 for entertainment. Ester stated that the family did not receive food stamps or WIC because both had been terminated.  She stated that, while the school age children currently received free lunches, she believed that soon she would be paying for their lunches.  Ester testified that appellant had recently given her a nice vacuum cleaner that they were making payments on.  Ester also testified concerning accounts to Verizon, the local dentist, the local hospital, and several credit card companies that were past due.

The Texas Court of Criminal Appeals addressed the trial court=s determination on a motion for a free reporter=s record in Tuck v. State, 215 S.W.3d 411 (Tex. Crim. App. 2007).  In Tuck, the court reiterated the well-established law in Texas that indigency is determined on a case-by-case basis considering the financial status of the defendant at the time of the appeal.  215 S.W.3d at 414-15.  The defendant must present a prima facie showing of indigence, and then the burden shifts to the State to refute.  Id. at 415.  Reasonableness of expense may be considered and must be reviewed in light of the totality of the defendant=s financial situation.  Id. at 416.  The appellate court is limited to consider the sworn evidence before the trial court and may not consider factual assertions outside the record.  Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004).

Appellant has failed to establish that the trial court erred in denying his motion for a free reporter=s record. In fact, the record before this court supports the trial court=s ruling.  Appellant=s challenge to the trial court=s order denying his motion for a free record is overruled, and the order is affirmed.

Because the finding that appellant is not indigent has been affirmed, we now proceed to appellant=s challenge as to the merits of his conviction.  Appellant is directed to file the reporter=s record from the trial on the merits in this court on or before March 3, 2008.  This court is very concerned with the inordinate delay in the submission of this appeal.  Therefore, appellant is directed to file his brief on the merits in this court on or before April 2, 2008.  Failure to file the brief by April 2 may result in the submission of the appeal on the merits on April 2 pursuant to Rule 38.8(b)(4).  The mailbox rule will not apply, and the brief must be actually filed in this court by the April 2 due date.

The order of the trial court is affirmed.

PER CURIAM

January 31, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

---

^[1]Appellant=s last name is spelled both AMurgia@ and AMurguia.@