Whitehead v. State

HERVEY, J.,

concurring in which Keasler, J., joined.

I join parts I.A., I.B., II.E., and III. of the Court’s opinion. The discussion in part II.B. of the Court’s opinion on the appellate standard of review of a trial court’s ultimate determination of non-indigence is unnecessary because the issue here is whether to uphold the trial court’s determination that appellant failed to make a prima facie showing of indigence, which is a question of law. See Lopez v. State, 954 S.W.2d 774, 776 (Tex.Cr.App.1997) (McCormick, P.J., dissenting to refusal of State’s discretionary review petition) (prima facie case simply means there is sufficient evidence that if believed by the factfinder will support a particular finding).

And, as to the discussion in part II.D. of the Court’s opinion on what I assume to be the legal issue of whether appellant made a prima facie showing of indigence, I would decide that someone who has a total monthly income of $4,069.33 cannot establish a prima facie case of indigence for purposes of determining whether the taxpayers should furnish her with a record and a lawyer. That this person may be insolvent because of the way she chooses to spend her money is irrelevant to the indigence question. This would make it unnecessary to address the issues discussed in parts II.A. and II.C. of the Court’s opinion.

With these comments, I concur in the Court’s judgment.