Burns Giles Miller v. State ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00027-CR
BURNS GILES MILLER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 1
McLennan County, Texas
Trial Court No. 20160215CR1
MEMORANDUM OPINION
In one issue with two sub-parts, Appellant Burns Giles Miller appeals the trial
court’s denial of his request for appointment of counsel. The State does not oppose
Miller’s request for relief. We will reverse the trial court’s judgment and remand this case
for further proceedings.
After Miller entered a plea of guilty to the offense of driving while intoxicated with
a prior conviction, the trial court sentenced him to twenty-four months’ community
supervision. Miller was represented by appointed counsel at the time of his plea and
sentencing. Approximately four months after sentencing, the State moved to revoke
Miller’s community supervision. Miller requested the appointment of counsel and
completed an affidavit of indigency, but his request was denied by the trial court without
a hearing. The trial court specifically found, “[d]ocumented income and/or assets are
over allowable amounts.” Miller, whose wife is in a nursing home, reported a monthly
income of $1,572.00 from Social Security and bills and expenses of $1,688.78. After the
trial court denied his request for counsel, Miller represented himself at the revocation
hearing. The trial court found the State’s allegations were true, revoked Miller’s
community supervision, and sentenced him to 180 days in the county jail. Although
Miller did not complete a new affidavit of indigency, the trial court appointed counsel to
represent him on appeal.
As noted, Miller argues that the trial court erred in denying his request to have
counsel appointed. Specifically, Miller first asserts that the trial court abused its
discretion in finding that he was not indigent after he made a prima facie showing of
indigence that was not contradicted by the State. Miller further asserts that, even if the
trial court did not err on the issue of his indigency, he did not voluntarily, knowingly,
and intelligently waive his right to counsel. Because we determine that the trial court
abused its discretion in finding that Miller was not indigent, we do not reach the waiver
issue.
Indigency determinations are made on a case-by-case basis and are reviewable for
an abuse of discretion. See McFatridge v. State, 309 S.W.3d 1, 5 (Tex. Crim. App. 2010); see
also Coleman v. State, 246 S.W.3d 76, 85 (Tex. Crim. App. 2008). Courts use a two-step
Miller v. State Page 2
process when making indigency determinations for purposes of appointment of counsel.
McFatridge, 309 S.W.3d at 6. First, the defendant must make a prima facie showing of
indigence. Id. Once the defendant satisfies this initial burden of production, the burden
then shifts to the State to show that the defendant is not, in fact, indigent. Id. If a
defendant establishes a prima facie case, “an appellate court can uphold a trial court’s
determination of non-indigence only if the record contains evidence supporting such a
determination.” Id. (quoting Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App.
2004)). We will uphold the trial court’s decision denying a defendant’s indigent status
only if we find that the trial court, having used the appropriate test, “’reasonably’
believed the defendant was not indigent.” Id. The trial court may require a defendant to
verify his claim of indigence with supporting documentation. Whitehead, 130 S.W.3d at
875. “If the trial court does not request verification, then the defendant’s sworn
allegations should be accepted unless the allegations are suspect in a manner that
verification would not remedy.” Id.
Although there are no set standards to guide the trial court in making a
determination of indigency, the factors in article 26.04(m) of the Code of Criminal
Procedure should be considered. TEX. CODE CRIM. PROC. ANN. art. 26.04(m) (West Supp.
2017); see also Ex parte Bain, 568 S.W.2d 356, 361 (Tex. Crim. App. 1978). Article 26.04(m)
provides:
In determining whether a defendant is indigent, the court or the courts’
designee may consider 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.
Miller v. State Page 3
The trial court should also consider the State-mandated guidelines adopted by McLennan
County. See White v. State, 441 S.W.3d 803, 807 (Tex. App.—Texarkana 2014, no pet.)
(citing art. 26.04(l)); see also art. 26.04(a) (judges of courts in each county shall adopt and
publish written procedures for timely and fairly appointing counsel for indigent
defendants). We take judicial notice of the Indigent Defense Plan that has been adopted
by McLennan County and that has been provided as an exhibit by Miller.1 This plan
considers a defendant indigent if his household income does not exceed 125% of the
poverty guidelines established by the U.S. Department of Health and Human Services
and if the difference between the defendant’s monthly net income and reasonable
necessary expenditures is less than $500. At the time Miller completed his financial
affidavit, the poverty level for a couple under the McLennan County plan (using the U.S.
Poverty Guidelines for 2016) was $16,020. Miller’s affidavit reflects an annual income of
$18,864, which does not exceed 125% of the applicable poverty guideline--$20,025.
Additionally, the difference between Miller’s expenditures and his income is less than
$500. The information provided by Miller in his affidavit was, therefore, sufficient to
establish a prima facie case of indigency.
As noted, the trial court did not conduct a hearing on Miller’s application for
appointed counsel. The record supporting the trial court’s findings consists of Miller’s
1
We “must take judicial notice if a party requests it and the court is supplied with the necessary
information.” TEX. R. EVID. 201(c)(2); see also Perez v. Williams, 474 S.W.3d 408, 419 (Tex. App.—Houston
[1st Dist.] 2015, no pet.). Appellant has provided copies of McLennan County’s indigent defense plan and
the 2016 U.S. Department of Health and Human Services federal poverty guidelines.
Miller v. State Page 4
financial affidavit and some remarks made by the trial court at other hearings. Miller’s
handwritten affidavit includes the information he provided, as well as handwritten notes
presumably made by the Indigent Defense Coordinator, who reviewed and notarized
Miller’s affidavit. The notes by the Coordinator clarify that Miller owned assorted assets,
the value of which were unknown to him. Miller’s other reported assets included his
home, that he valued at approximately $95,000 and that was mortgaged, and a 1997
Chevrolet CK 1500 of unknown value. The trial court denied Miller’s request for
appointment of counsel on November 8, 2016 and, as previously noted, found that
Miller’s “income and/or assets are over allowable amounts.”
At a hearing on December 2, 2016, that is identified as “Revocation Hearing,”
Miller and the trial court had the following exchange:
THE COURT: Have you been denied a Court-
appointed attorney?
THE DEFENDANT: Yes, because, you know,
they say (indiscernible) - -
THE COURT: You are Burns Giles Miller,
correct?
THE DEFENDANT: Yes. And, you know, I’ve
had this house for 13 years. My wife is in a nursing home. All I have is
disability. I get $1,572 a month. I’m behind on my mortgage, which - -
THE COURT: This is not a hearing, sir.
THE DEFENDANT: Okay. All right. Well - -
THE COURT: This is what you’re going to do.
You’re either going to represent yourself, or you’re going to try to hire an
attorney.
Miller v. State Page 5
THE DEFENDANT: I don’t have the money to
hire an attorney.
THE COURT: Have you tried to hire an
attorney?
THE DEFENDANT: I can’t.
THE COURT: Do you have a house that you
could mortgage, that you could get a loan on or sell?
THE DEFENDANT: I can’t - - I don’t - - Your
Honor, I have nowhere to go. And I’ve got - - we’ve got a house full of
furniture that’s given to us by our grandparents and parents, valuable
antiques. I’m not going to give every - - just - -
THE COURT: That’s what you’ve got to do.
You’ve got to either get the money to hire an attorney or - -
THE DEFENDANT: I’m going to represent
myself, Your Honor, yes.
THE COURT: All right.
At the revocation hearing on December 29, 2016, the following exchange occurred when
the trial court inquired whether Miller wished to present any evidence in regard to
punishment:
THE DEFENDANT: Well, I’m working right
now in the middle of financial assistance on my mortgage so I don’t lose
my house. My wife has been in a nursing home three years. And all of our
furniture, which is given down to us by grandparents, are valuable
antiques. I mean, I would lose everything I’ve got.
THE COURT: Mr. Miller, you were given the
opportunity to file a financial affidavit to request assistance of an attorney.
You didn’t list any of that.
THE DEFENDANT: I don’t know anything
about that, Your Honor.
Miller v. State Page 6
THE COURT: You listed the value of the house
as $95,000. Every time you were asked the question about the value of a
vehicle or value of other assets, you put “unknown.” You were not very
cooperative, and that’s why you didn’t get a Court-appointed attorney.
At this point, I’m going to sentence you, as requested by the
State, which is a very fair request because your probation was based on 365
days and a $4,000 fine. I’ll follow the recommendation of the State and
sentence you to jail for a period of 180 days.
You have the right to appeal this decision, Mr. Miller. And,
based upon the information you provided to me today, I am going to
appoint an attorney for you to confer with and decide whether you wish to
appeal this matter.
It is unclear from the record what assets Miller possessed or their value, or why the trial
court considered Miller uncooperative. However, based on the same information, the
trial court appointed counsel to represent Miller for purposes of appeal.
Although we show some deference to a trial court’s factual determinations, the
trial court is not at liberty to disbelieve a defendant’s allegations concerning his own
financial status unless the court has “a reasonable, articulable basis for doing so, either
because there is conflicting evidence or because the evidence submitted is in some
manner suspect or determined by the court to be inadequate.” McFatridge v. State, 262
S.W.3d 907, 911 (Tex. App—Waco 2008, aff’d, 309 S.W.3d 1 (Tex. Crim. App. 2010))
(quoting Whitehead, 130 S.W.3d at 876). The record does not reflect the reasons for the
trial court’s disbelief of Miller’s affidavit. Nor does the record reflect that the trial court
requested additional verification from Miller regarding his assets or held a hearing on
the issue of his indigence. As noted in Whitehead, the disadvantages of erroneously ruling
in a defendant’s favor when evaluating his indigence are relatively innocuous, while
Miller v. State Page 7
erroneously ruling against a defendant increases the risk that a truly indigent defendant
will be deprived of counsel. Whitehead, 130 S.W.3d at 876. Additionally, the question of
a defendant’s indigence can be reconsidered if his financial status changes, and a
“defendant can be required to reimburse the cost of legal services if it is later determined
that he is able to do so.” Id.; see also art. 26.04(p); TEX. CODE CRIM. PROC. ANN. art. 26.05(g)
(West Supp. 2017).
We conclude that, based upon the record before us, the trial court abused its
discretion in denying Miller’s request for appointment of counsel. We therefore sustain
Miller’s sole issue. The judgment of the trial court is reversed and remanded for further
proceedings consistent with this opinion.
REX D. DAVIS
Justice
Before Chief Justice Gray,*
Justice Davis, and
Justice Scoggins
*(Chief Justice Gray concurs in the court’s judgment to the extent it reverses and
remands the trial court’s judgment. A separate opinion will not be issued.)
Affirmed
Opinion delivered and filed April 4, 2018
Do not publish
[CR25]
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