Opinion
No. 11-10-00063-CR
Order filed January 20, 2011. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 132nd District Court, Scurry County, Texas, Trial Court Cause No. 9566.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
ORDER
The trial court denied Roberto Garcia Vera's request for a free record in his appeal of his felony driving while intoxicated conviction. On appeal, appellant contends that the trial court abused its discretion in finding that he was not indigent for the purposes of obtaining a free record on appeal. We abate the appeal and direct that the appellate record be furnished without charge. In McFatridge v. State, 309 S.W.3d 1 (Tex. Crim. App. 2010), the Court of Criminal Appeals recently reiterated the applicable law concerning indigency on appeal, stating:
A defendant is indigent for purposes of the appointment of appellate counsel if he is "not financially able to employ counsel." For purposes of qualifying as an indigent in order to receive a copy of the record furnished without charge, a defendant must be unable to "pay or give security for the appellate record." Indigency determinations are made at the time the issue is raised and are decided on a case-by-case basis. Determining indigency for purposes of appointing counsel and indigency for purposes of obtaining a free record are discrete inquiries, but the factors to be considered are the same. A defendant can be found indigent for one purpose without being found indigent for the other. Relevant to both indigency determinations are "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." Each county should have guidelines and financial standards that it applies to determine whether a defendant is indigent for purposes of appointing counsel.
This Court has adopted a two-step process to guide courts in making indigency determinations for purposes of a free record for appeal. First, the defendant must make a prima facie showing of indigency. 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. This means, essentially, that unless there is some basis in the record to find the defendant's prima facie showing to be inaccurate or untrue, the trial court should accept it as sufficient to find him indigent. After a defendant establishes a prima facie showing of indigency, "an appellate court can uphold a trial court's determination of non-indigence only if the record contains evidence supporting such a determination." In Whitehead, we recognized that the two-step process outlined above also applies when determining whether a person is indigent for purposes of appointed counsel. A reviewing court should uphold a trial court's ruling denying indigent status only if it finds that the trial court, having utilized this two-step process, "reasonably" believed the defendant was not indigent.
A reviewing court may not consider facts that were not developed in the record.309 S.W.3d at 5-6 (footnotes omitted). For purposes of a free record, an appellate court will uphold a trial court's non-indigency finding if there is credible evidence in the record supporting such a finding. Id. at 9. Appellant's punishment in this case was assessed at confinement for forty years. At the time of the indigency hearing, appellant had been incarcerated for three months. Appellant testified that he had no checking or savings account, no income, no car, and no credit and that he would not be able to borrow money from a bank to pay for the record. Appellant did have one asset: a house that his parents had given him. Appellant lived in that house prior to being convicted in this case, and according to his affidavit, it was his homestead. Appellant testified that the house needed a lot of repairs and could not be rented in the condition that it was currently in. The house was not occupied at the time of the indigency hearing. When presented with the Statement of Account from the Scurry County Tax Assessor Collector's Office, appellant agreed that the value of the house and land for tax purposes was $13,286, but he did not believe it was actually worth that much. The record showed that back taxes of $546.26 were owed on appellant's house. Appellant's affidavit showed that, because of the condition of the house and its status as his homestead, he "cannot borrow any money on it." Appellant admitted on cross-examination that he probably could sell the house to cover the $2,900 cost of the reporter's record, but he subsequently testified that he did not want to sell his home. We hold that appellant established a prima facie case of indigence and that the trial court abused its discretion in denying appellant's request for a free record on appeal. See Stephens v. State, 509 S.W.2d 363 (Tex. Crim. App. 1974). The State, citing McFatridge, relies on appellant's ownership of the house to support its contention that he was not indigent and could pay for the record. We note that the court in McFatridge considered only nonexempt assets in making its indigency determination and that it did not consider the defendant's house. 309 S.W.3d at 4 n. 5, 7-8. The State did not rebut appellant's assertions regarding the condition of his house or his inability to pay for the record by means other than the sale of his house, which was his homestead. We cannot uphold the trial court's finding of non-indigence under these circumstances. We sustain appellant's issue. The appeal is abated and will be reinstated upon the filing of the reporter's record from appellant's trial. The court reporter is directed to prepare the record and forward it to this court on or before February 21, 2011. Appellant's supplemental brief will be due thirty days from the date of filing of that reporter's record, and the State's supplemental brief will be due thirty days from the date appellant's supplemental brief is filed.
Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004).
We note that the clerk's record has already been filed in this court.