Virginia Ann George v. The State of Texas--Appeal from County Court at Law of Kendall County

MEMORANDUM OPINION

No. 04-06-00472-CR

Virginia Ann GEORGE,

Appellant

v.

The STATE of Texas ,

Appellee

From the County Court at Law, Kendall County, Texas

Trial Court No. 05-457-CR

Honorable Bill Palmer , Judge Presiding

Opinion by: Karen Angelini , Justice

Sitting: Karen Angelini , Justice

Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: November 22, 2006

ABATED AND REMANDED

Virginia Ann George was convicted of driving while intoxicated. Her sentence was suspended, and she was placed on community supervision for twelve months. She has filed two notices of appeal: one appealing from her conviction; and the other appealing from the trial court's denial of her motion for free record on appeal. Because we hold that the trial court should not have denied her motion for free record, we reverse its order, abate this appeal, and remand the cause to the trial court.

Background

After her conviction, George filed a motion for free record on appeal. On August 8, 2006, the trial court, after an evidentiary hearing, denied George's motion. George has filed two notices of appeal: one appealing from the trial court's denial of her motion for free record; and the other one appealing from her conviction.

On appeal, George's retained trial counsel has also filed a motion to withdraw and request for appointment of counsel. Originally, after being charged by information with driving while intoxicated, George was appointed counsel. However, on November 15, 2005, using her tax return reimbursement and proceeds from her insurance claim with respect to her car, she was able to hire an attorney, Cecil Bain. Then, on February 23, 2006, current counsel Kira Anne West was hired solely for the purpose of presenting and arguing George's motion to suppress, which was subsequently denied. However, according to West in her motion to withdraw, because of the testimony elicited at the suppression hearing, West filed a motion to disqualify the prosecutor, which was also denied. According to West, "[b]ecause of irregularities during the pretrial process, especially the motion to suppress, [she] believed she was ethically bound to try the case free of charge." But, West never agreed to represent George pro bono on appeal. Thus, she asks that we grant her motion to withdraw and abate and remand the cause for appointment of counsel.

With respect to George's appeal of the denial of her motion for free record, the reporter's record of the evidentiary hearing has now been filed. Thus, without requesting briefing, we consider whether the trial court erred in denying George's motion.

Discussion

A defendant is considered indigent and entitled to a free reporter's record on appeal if she "cannot pay or give security for the appellate record." Tex. R. App. P. 20.2. The Texas Court of Criminal Appeals has articulated a two-step process for considering whether a criminal defendant is indigent for the purpose of obtaining a free record on appeal: (1) the defendant must make a prima facie showing of indigence; and (2) when the prima facie showing is made, the burden shifts to the State to show that the defendant is not in fact indigent. Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004). Such a determination must be made on a case-by-case basis at the time of appeal, not as of some prior or future time. Id. Although the indigence determination is committed to the trial court's discretion, our review of the court's ruling is not as deferential as it is in other contexts. Id. at 875-76. The trial court is not free to simply disbelieve the defendant's sworn allegations regarding her financial status. Id. at 875. The court may disbelieve an allegation only if there is a reasonable articulable basis for doing so, either because there is conflicting evidence or because the evidence submitted is in some manner suspect or inadequate. Id. at 876.

On August 8, 2006, the trial court heard George's motion for a free record on appeal. At the time of the hearing, the estimate of the cost for the reporter's record was $5,000.00. Indeed, the court reporter has since filed a notification of late reporter's record, indicating that she anticipates the length of the record to be 1000 pages.

According to George's testimony at the hearing, she makes around $1,000 to $1,200 per month at TGI Friday's restaurant. She is currently in the process of having her divorce finalized. Despite having custody of the three children, ages nine, ten, and fourteen, she receives no income from her spouse or child support. Thus, she is completely responsible for supporting them. The draft of the divorce decree orders that she receive what she currently possesses, along with one car, and that her husband receive what he currently possesses, along with the other car. Although George will be awarded one of the cars, that car was completely "totaled" last year. In October or November of 2005, George received enough money to pay off the car and an extra $2,000. However, she no longer possesses these proceeds. She used last year's income tax refund and the car proceeds to pay her first attorney $6,000. Now she drives a car owned by her mother.

According to George's testimony, she does not own a home. Instead, she and her children live with her mother. Her phone bill is $80 per month. She owes $25,000 in student loans and makes payments of $132 per month. She pays $100 per month for car insurance. Because her daughter was hospitalized, she owes three to four thousand dollars to different medical providers. She pays between $100 to $200 per month to these providers depending on her paycheck from TGI Fridays. She has no stock or bonds or other income. She has a balance of $700 on her only credit card. She pays $99 per month in health insurance for her children. The day before the hearing, she had $24 in her savings account and around $100 in her checking account. Because her paycheck was directly deposited in her checking account on the day of the hearing, she estimated that she had around $900 at the time of the hearing.

George testified that she does not own any property. About three to five years ago she sold her house, but she no longer possesses any of the proceeds. Her 2005 W-2 from TGI Fridays, entered in evidence, indicates that her wages for 2005 were $9,634.05. According to George, she had no other income in 2005. She also entered in evidence "account activity" from her checking account from May 16, 2006 to August 4, 2006. At the hearing, the trial court asked George whether this information "would probably accurately show what normally happens to you each month regarding money coming in and money going out, right?" George replied, "That's correct." The "account activity" shows the following deposits were made to George's bank account from TGI Friday's account:

May 16th: $70.88

May 30th: $256.01

June 13th: $77.43

June 27th: $318.75

July 11th: $823.95

July 25th: $946.43

These amounts were confirmed by Exhibit 3, paycheck stubs from TGI Fridays. Exhibit 3 also shows that on May 2nd, George received a paycheck in the amount of $222.20 from TGI Fridays.

At the hearing, the State emphasized that George took home $1,770.35 in July and that her "bills are only $600 a month." However, George testified that the hours she is able to work depend on TGI Friday's business needs and when she is "allowed to work around her daughter." Indeed, George's most recent paycheck stub of July 25, 2006, shows that she earned $7,763.48 in gross pay and $5,704.90 in net pay from January 1, 2006, to July 17, 2006. As such, for a period of six and a half months, George took home on average $877.68 per month. And, along with her "bills" in the amount of $600, she had to feed and clothe her three children.

At the hearing, the trial court emphasized that George had not brought all the documents it had requested. However, despite George's failure to bring all the documents, the trial court was not free to disbelieve George's testimony concerning her financial status, but could only disbelieve her allegations of financial status if there was "a reasonable, articulable basis for doing so, either because there [was] conflicting evidence or because the evidence submitted [was] in some manner suspect or determined by the court to be inadequate." Whitehead, 130 S.W.3d at 876. The trial court here did not make any such determination. And, reviewing the record, we find no reasonable, articulable basis for disbelieving George's testimony.

Although George did not bring her 2005 Tax Return to the hearing, she failed to do so because she had not yet received the copy she had requested from the federal government. And, to show her income, she brought her 2005 W-2 and her paycheck stubs showing what she had earned for 2006. Further, although she did not bring the draft of the "inventory" in her divorce decree, she failed to do so only because she believed that since her divorce decree had not been entered, it was not a proper legal document that the court would want to review. Instead, once she realized the trial court was concerned about what property she would receive in the divorce, she testified that she would receive what she currently possesses and a car that had been "totaled." According to George, she and her husband simply did not own anything of value. She explained that she did not bring "canceled checks" because she does not have checks. Instead, she has a check card. And, she brought her "account activity" from her checking account for only the last three months, because she did not realize that the trial court would want to see them from October 2005 until now. She offered to supplement her statements, but the trial court denied her request, stating that it had asked her to bring them on the day of the hearing. However, despite not having the bank statements from October 2005 to the day of the hearing, the trial court, itself, elicited testimony from George that the last three months of account activity "would probably accurately show what normally happens to you each month regarding money coming in and money going." And, those three months of account activity show that George took home on average $877.68. Thus, pursuant to Whitehead, the trial court had no articulable basis for disbelieving her testimony. And, her testimony established that she cannot pay or give security for the appellate record; the State did not rebut this evidence by showing that she was not in fact indigent. As such, the trial court should not have denied George's motion for free record.

Conclusion

We reverse the trial court's order denying George's motion for free record and order the court reporter to prepare the reporter's record on the merits. We also grant West's motion to withdraw as counsel, abate this appeal, and remand the cause for appointment of counsel on appeal.

Karen Angelini , Justice

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