Dwayne A. Wachel v. The State of Texas--Appeal from 82nd District Court of Robertson County

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Wachel-DA v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-95-215-CR

 

DWAYNE A. WACHEL,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 82nd District Court

Robertson County, Texas

Trial Court # 94-06-15,605-CR

 

O P I N I O N

 

Dwayne Wachel was indicted for attempted murder of Christian Wachel by running over her with a motor vehicle. He was alternatively indicted for aggravated assault. A jury convicted him of simple assault and assessed one year in the county jail and the maximum fine of $3,000. Wachel gave notice of appeal and requested a free statement of facts. After a hearing the court denied his request.

THE CONTROVERSY

Wachel's sole point on appeal complains of the court's denial of his motion for a free statement of facts.

THE RULE

The right to request a free statement of facts arises under Rule 53 of the Rules of Appellate Procedure. Tex. R. App. P. 53(j)(2). If after a hearing the court finds that the appellant is indigent unable to pay for or give security for the statement of facts, the court shall order that one be furnished at the county's expense. Id. Indigency is determined on a case-by-case basis. Abdnor v. State, 712 S.W.2d 136, 141 (Tex. Crim. App. 1986). It is determined at the time of the appeal, not the time of trial. Id. at 142. It is the status of the defendant himself, not any relative, that is critical. Id. The request cannot be denied merely because the defendant had retained counsel at trial. Id. Factors that may be considered include "the nature of his employment, the amount of his earnings and expenses, and his ability to secure a bond and retain counsel." Skidmore v. State, 808 S.W.2d 708, 710 (Tex. App. Texarkana 1991, no pet.) (citing Fishman v. State, 771 S.W.2d 573, 575 (Tex. App. Corpus Christi 1989, pet. ref'd), cert. denied, 495 U.S. 905, 110 S. Ct. 1924, 109 L. Ed. 2d 287 (1990)). A defendant is indigent when the testimony adduced in his behalf establishes a prima facie showing of indigency and the State fails to undermine that showing. Snoke v. State, 780 S.W.2d 210, 213 (Tex. Crim. App. 1989).

We review the court's denial of Wachel's request for a free statement of facts under the abuse-of-discretion standard. Rosales v. State, 748 S.W.2d 451, 455 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1241, 108 S. Ct. 2917, 101 L. Ed. 2d 949 (1988); Harper v. State, 850 S.W.2d 736, 739 (Tex. App. Amarillo 1993, pet. ref'd). In the absence of a clear abuse of discretion, the judge's ruling will not be disturbed on appeal. Rosales, 748 S.W.2d at 455.

As the Court of Criminal Appeals has described, an abuse of discretion occurs when the trial court applies an erroneous legal standard, or when no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion. DuBose v. State, 915 S.W.2d 493, 497-98 (Tex. Crim. App. 1996). An abuse of discretion occurs only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), cert. denied, U.S. , 113 S. Ct. 3046, 125 L. Ed. 2d 751 (1993).

THE ASSERTIONS

Wachel testified at the hearing. His position is that, although he owns a home and a truck on which he is making payments and a boat of no value, he cannot afford both a retained appellate lawyer and the statement of facts estimated to cost $3,400. He was employed full-time at a computer service company, at an annual salary of $22,000. He maintained that he had spent a considerable sum defending himself and that he owes his father approximately $16,000 in unsecured debt for money borrowed from him. He said that he had outstanding medical bills of between $2,500 and $3,000. He further said that he pays $300 per month in child support, pays utility bills, and makes credit card payments.

The State points to the facts that Wachel had $400-500 in his bank account, had take-home pay of $1,500, and had made no attempt to borrow the funds necessary to purchase the statement of facts. His equity in his home, using the value from the tax roll, was approximately $7,000. Thus, it asserts that Wachel has made the wrong choice that he should have paid for the statement of facts, then sought to retain counsel with the funds he had for that purpose. "Appellant's misplaced priorities do not constitute proof of denial of access to a meaningful appeal."

OUR REVIEW

The State points to Rosales as instructive because the Court of Criminal Appeals found that the trial court did not abuse its discretion in denying a request for a free statement of facts to Rosales, whom the State asserts was more deserving than Wachel. 748 S.W.2d 451. We disagree with the State's characterization of Rosales' financial circumstances as compared to Wachel's and decline the invitation to use it as controlling our disposition.

Here, the court, in reaching its decision, considered Wachel's employment "at a very good job" and his "substantial equity" in his home. Having carefully reviewed the record of the indigency hearing and considering that the standard for our review is whether the court abused its discretion, we cannot say that the trial court applied an erroneous legal standard, or that no reasonable view of the record could support the trial court's conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion. Id. at 455; DuBose, 915 S.W.2d at 497-98. Thus, we overrule point one and affirm the court's denial of Wachel's motion for a free statement of facts.

BILL VANCE

Justice

 

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 10, 1996

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