Kent Anthony Krueger v. The State of Texas--Appeal from 22nd District Court of Comal County

krueger IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-293-CR
KENT ANTHONY KRUEGER,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
NO. CR90-258, HONORABLE FRED A. MOORE, JUDGE PRESIDING

Over a plea of not guilty, the jury found appellant Kent Anthony Krueger guilty of unlawful possession of methamphetamine, a controlled substance. See Tex. Health & Safety Code Ann. 481.102(6), 481.115(b) (Pamph. 1992). The jury assessed his punishment at five-years imprisonment. On its own motion, the trial court found Krueger was not indigent for purposes of appeal. Krueger appeals from this finding. We will affirm the judgment.

 
THE CONTROVERSY

After being indicted for possession of a controlled substance, Krueger applied for a court-appointed attorney. In his application Krueger acknowledged owning a motorcycle, but swore he had no money and had no ability to obtain credit to raise money. He did not mention any lien on the motorcycle. The court appointed an attorney to represent Krueger at trial.

After the jury found Krueger guilty and fixed his punishment, the trial court pronounced sentence on June 3, 1991. In that same proceeding, Krueger's attorney gave oral notice of appeal, whereupon the court sua sponte took up the issue whether Krueger was indigent.

During the indigency hearing, Krueger stated that his mother bought him the motorcycle mentioned in the earlier application for court-appointed counsel in exchange for Krueger's waiver of rights in a trust fund. The State had taken custody of the motorcycle at some earlier time, perhaps on Krueger's arrest, but approximately a week before trial Krueger's mother replevied the motorcycle for $3500. Krueger therefore had possession of the motorcycle at the time of trial. He stated during the hearing that he owned the motorcycle "with a clear title in my name." He also stated the motorcycle had a "book value" of $4400.

The trial court asked Krueger's mother, a Ms. Kaufman, whether she intended to assist her son in his appeal. She stated that she could not afford to pay for an attorney for Krueger. Based on the statements of Krueger, his mother and his attorney, the trial judge said, "It's my finding he's not indigent. He's got access to money. That is all I've heard, sir. I'm not paying for any appointed attorney on appeal."

On June 12, 1991, Krueger filed a second application for court-appointed attorney. On that document he wrote, "Motorcycle has $3000 lein [sic] on title. Balance owed to Mother and NCNB. Sorry, no dice." Krueger swore that he had no other assets except a few items of furniture and an automobile worth $100. On the same day the trial court denied Krueger's application, stating that he found Krueger was not indigent and therefore was not entitled to a free record or to court-appointed counsel on appeal.

On June 18, 1991, Krueger filed an indigent's motion for statement of facts. The trial court denied the motion. Krueger then filed a notice of appeal on the issue of indigency.

 
DISCUSSION

In his sole point of error, Krueger complains the trial court erred in refusing to grant the request for a court-appointed attorney. Krueger argues that he established his indigency by showing that he was unemployed, that he had no access to a trust fund, that he had no other money, and that he had no one to help him with his legal fees. The State offered no argument or evidence in rebuttal of Krueger's application. See Snoke v. State, 780 S.W.2d 210, 213 (Tex. Crim. App. 1989) (once a defendant makes a prima facie showing of indigency, he is entitled to court-appointed counsel unless the State offers evidence to rebut the claim).

The State contends Krueger failed to make a prima facie showing of indigency because he admitted before the court that he had possession of and clear title to a motorcycle worth $4400. Therefore, argues the State, the trial court did not abuse its discretion in denying Krueger's application for a court-appointed attorney. See Rosales v. State, 748 S.W.2d 451, 455 (Tex. Crim. App. 1987) (the determination of indigency lies within the discretion of the trial court), cert. denied, 487 U.S. 1241 (1988). We agree.

A defendant claiming indigency status (1) must exercise due diligence in asserting his indigency, including filing his affidavit; and (2) must sustain the allegations of his affidavit as to indigency at the hearing. Snoke, 780 S.W.2d at 212-13. We conclude no due-diligence issue arises in this cause. The trial court addressed the indigency issue sua sponte before Krueger had a chance to file his application for court-appointed counsel on appeal. Moreover, Krueger filed his application within ten days of the hearing and obtained a ruling the same day.

The dispositive issue, then, is whether Krueger sustained his allegations that he had no money and could not obtain money by selling his motorcycle. (1) See id. at 213 (the defendant at an indigency hearing bears an initial burden to go forward with evidence to substantiate his sworn allegation of indigency). From Krueger's statements at the hearing and in his affidavit, we believe he established that he has no money and no opportunity to obtain money from his mother or others. See Rosales, 748 S.W.2d at 455 (a court should consider only the defendant's financial condition, not that of parents, friends or others). We do not believe he established that his motorcycle was encumbered and therefore unavailable for sale.

During the hearing, Krueger said he had clear title to the motorcycle and that the motorcycle had a book value of $4400. His mother, Kaufman, stated that she "gave" the motorcycle to Krueger and that the motorcycle was "in his name." Finally, Krueger's attorney stated that Krueger had possession of the motorcycle at the time of the hearing. No one at the hearing mentioned a lien on the motorcycle in favor of Kaufman or a bank, nor did Krueger list any liens on the motorcycle in his first application for a court-appointed attorney to represent him at trial. The first mention of the liens appeared in the affidavit Krueger filed June 12, 1991.

Krueger argues that when a defendant is represented at trial by court-appointed counsel, a presumption arises that the defendant is indigent for purposes of appeal as well, absent a contrary showing. See Morey v. State, 744 S.W.2d 668, 669 (Tex. App. 1988, no pet.) (citing Bush v. State, 557 S.W.2d 772, 773 (Tex. Crim. App. 1977)). A court, however, must determine indigency at the time the appeal is filed, not at the time of trial. Snoke, 780 S.W.2d at 213; Abdnor v. State, 712 S.W.2d 136, 142 (Tex. Crim. App. 1986). At the time Krueger gave his oral notice of appeal, he stated that he had clear title to the motorcycle. We believe Krueger rebutted the presumption of indigency by his own statements. See Castillo v. State, 571 S.W.2d 6, 7 (Tex. Crim. App. 1978) (the fact that the defendant has appointed counsel at trial is not dispositive on the issue of indigency for purposes of appeal).

Courts cannot determine indigency by rigid standards; instead, they must decide on a case-by-case basis whether the defendant is indigent. Snoke, 780 S.W.2d at 212. On the facts of this case, we cannot say the trial court abused its discretion in denying Krueger's application for a court-appointed attorney. See Taylor v. State, 799 S.W.2d 445, 446-47 (Tex. App. 1990, no pet.) (appellant did not make prima facie showing of indigency when evidence established he had automobile and jewelry he could sell to obtain funds for appeal). We overrule the point of error.

Finding no error, we affirm the trial-court judgment in all respects.

 

John Powers, Justice

[Before Justices Powers, Jones and Kidd]

Affirmed

Filed: June 10, 1992

[Do Not Publish]

1. Krueger does not complain on appeal that the trial court erred by deciding the indigency issue before Krueger filed his second application for court-appointed attorney or by failing to hold a hearing on the second application. Therefore, we will assume Krueger was obligated to establish at the hearing the allegations made in his subsequent affidavit. He does not allege his financial circumstances changed between the hearing and the filing of the second application.