Michael Dee Howard v. The State of Texas--Appeal from 216th Judicial District Court of Gillespie County

MEMORANDUM OPINION
No. 04-05-00388-CR

Michael Dee HOWARD,

Appellant
v.

The STATE of Texas,

Appellee
From the 216th Judicial District Court, Gillespie County, Texas

Trial Court No. 4321

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice
Delivered and Filed: May 10, 2006
AFFIRMED
Michael Dee Howard appeals the trial court's order finding him not indigent and denying his request for a free reporter's record on appeal. Because we hold that the trial court did not abuse its discretion in denying Howard's request for a free record, we affirm the trial court's order.

Background

Howard was convicted of aggravated assault with a deadly weapon by a jury. He was sentenced to twenty years imprisonment and assessed a fine in the amount of $5,000. Howard filed a timely notice of appeal, followed by an affidavit of indigence and a motion requesting a free copy of the reporter's record on appeal. On July 7, 2005, the trial court heard Howard's motion, found him not indigent, and denied his request for a free reporter's record on appeal. Howard now appeals the trial court's order.

Analysis

Howard argues that the trial court abused its discretion in finding him not indigent and denying him a free reporter's record on appeal. A defendant will be considered indigent and entitled to a free reporter's record if he "cannot pay or give security for the appellate record." Tex. R. App. P. 20.2. The Court of Criminal Appeals has articulated a two-step process for determining 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 in fact not indigent. Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004). Such a determination of indigence must be made on a case-by-case basis at the time of appeal, not as of some prior or future time. Id. Although not determinative on the question of indigency, the trial court may consider the fact that a defendant has retained counsel for trial or appeal. Abdnor v. State, 712 S.W.2d 136, 142 (Tex. Crim. App. 1986). On appeal, we review a trial court's ruling with respect to indigence under an abuse of discretion standard. Newman v. State, 937 S.W.2d 1, 3 (Tex. Crim. App. 1996).

The only evidence presented at the hearing in support of the indigency claim came from Howard's testimony. Howard testified that he has no cash, stocks, bonds, or pension accounts that he can access, and he has no other income. He stated that the real property that he and his wife own is worth less than what he owes on it, although he did not know the specific amounts. Howard stated that all the assets of the community estate are "frozen" in a pending divorce action, and that his wife is the complainant in one of his criminal cases and he is under a court order not to contact her. On cross-examination, Howard admitted that he owns a business and that he has clear title in his name to three trucks used in the business. He further stated that the vehicles and equipment used in his business are "tied up" as collateral for a note payable to his father. He testified his wife was still running the business. Howard further testified that he was currently being represented by retained counsel in his pending divorce case. During the hearing, the parties operated under the assumption that the reporter's record would cost approximately $2,000. Upon inquiry by the trial judge, however, the court reporter stated that no estimate of the cost of the reporter's record had been requested by, or provided to, Howard or his attorney.

In explaining its ruling, the trial court observed that Howard had failed to even inquire about the cost of the reporter's record, and had made no effort to obtain any funds from his business or from the community estate to pay for the record. (1) The court noted that Howard had failed to make any request for a release from his father, the holder of the note, so that he could sell one or more of the business vehicles to pay for the record. Howard also had made no attempt to obtain a partial release from the agreed temporary injunction in the divorce action so that he could access a community asset to pay for the record; upon request by Howard's counsel, the trial judge took judicial notice of the proceedings in the divorce action, which was pending before the same judge. The trial court further noted that Howard had retained counsel in the underlying criminal case, had retained different counsel to represent him on appeal, and had yet another retained attorney representing him in the divorce action. Finally, the court took judicial notice of the fact that the jury assessed a $5,000 fine in the underlying criminal conviction with the understanding that Howard had the means to pay the fine, separate from using the community real estate. (2)

The record supports the trial court's finding that Howard has some assets, which he has not attempted to liquidate, and is not indigent for purposes of receiving a free record. Further, Howard failed to introduce any evidence of the cost of the reporter's record, or that the record would have to be paid for in advance, and thus failed to show that he was unable to pay or give security for the cost of the record. Whitehead, 130 S.W.3d at 879. Based on the record before us, we hold the trial court did not abuse its discretion in denying Howard's request for a free reporter's record on appeal.

Phylis J. Speedlin, Justice

Do Not Publish

1. The court noted, "[i]t's a little disturbing to come in and say you can't pay for something and you don't know what it costs ... If you're going to look the Court in the eye and say, 'I can't afford this,' then tell me that you have checked and you know exactly how much it's going to cost, checked on your assets and you don't have it."

2. The court stated, "[d]uring the course of this trial, we had two notes from the jury wanting to make sure that if they assessed a fine against Mr. Howard, that it would not be satisfied out of the real property owned by Mr. and Mrs. Howard ... They knew exactly where the piece of land was they both owned together, knew [the] value of it and were concerned that that land would have to pay for the fine. The fine was in excess of $2,000, and they knew that that property was sufficient to pay that fine ... so I know he owns real property that's worth more than $2,000."