Vincent v. State

BURGESS, Justice,

concurring.

I reluctantly concur. I concur because the trial court and the majority discusses and perhaps relies upon certain facts which have no legal relevance. The determination of indigency for appellate purposes should be based upon a defendant’s financial condition at the time of appeal, not at the time of trial. Castillo v. State, 595 S.W.2d 552 (Tex.Crim.App.1980). Therefore all those matters that occurred well before the trial have absolutely no relevance. However, because defendant’s conduct between trial and the indigency hearing is relevant, the trial court could have properly denied appellant’s motion based solely upon appellant’s divesting himself of his automobile and furniture. Consequently, even if the trial court erroneously considered some matters there remains grounds upon which to uphold the trial court’s decision. See Cardona v. Marshall, 635 S.W.2d 741 (Tex.Crim.App.1982).

My concurrence is reluctant based solely on the fact that appellant had a court appointed trial counsel and there is nothing in the record to show that any of the circumstances changed from the time the court determined that indigency to the time of appeal. See Snoke v. State, 780 S.W.2d 210 (Tex.Crim.App.1989). Nor is there anything in our record to show that the defendant at the time of the trial indigency hearing (I assume there was one) mislead the court. There should be a uniform standard. If a defendant is entitled to court appointed trial counsel and nothing has changed, then he should be entitled to court appointed appellate counsel. There is nothing in our record to indicate the trial court didn’t know as much about the defendant on December 13, 1990, when trial counsel was appointed as on February 8, 1991, when appellate counsel was denied.

This concern causes reluctance; however, not enough to merit a dissent.