David Davis v. The State of Texas--Appeal from 147th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-426-CR
DAVID DAVIS,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 106,596, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated sexual assault and assessed punishment at imprisonment for ten years and a $10,000 fine. Tex. Penal Code Ann. 22.021 (West 1989). On the jury's recommendation, the district court suspended imposition of sentence and placed appellant on probation.

Appellant was convicted in this cause on July 30, 1992, and gave timely notice of appeal. Thereafter, the attorney retained to represent appellant at trial, who is appellant's attorney of record on appeal, filed in the district court a motion to withdraw as counsel. No action was taken on that motion. Appellant also filed an affidavit of indigence and motion for appointment of counsel on appeal. No action was taken on that motion. No request for a free statement of facts was made. On May 12, 1993, after no statement of facts was filed in this Court, we ordered the district court to conduct a hearing to determine if appellant wished to pursue the appeal, if appellant had been improperly deprived of a statement of facts, and if appellant is indigent. Tex. R. App. P. 53(m). This hearing was held on June 11, 1993. Among other things, the court found that appellant is not indigent. On June 30, this Court ordered counsel to file a brief on appellant's behalf raising as a point of error the district court's failure to find appellant is indigent, and raising any additional points supported by the present record.

In nine points of error, appellant contends the district court erred by failing to hold a timely hearing on his affidavit of indigence (points one, two, and three), by failing to appoint counsel on appeal (points four, five, and six), and by failing to find that appellant is indigent (points seven, eight, and nine). U.S. Const. Amend. V, XIV; Tex. Const. art. I, 10, 13, 19; Tex. Code Crim. Proc. Ann. arts. 1.051 (West Supp. 1993), 26.04 (West 1989). With regard to the first three points, this Court agrees that it would have been better if the issue of appellant's indigence had been resolved sooner. There is nothing in the record, however, to indicate that this matter was ever brought to the court's attention or that a hearing was ever requested. In any event, these points of error are moot because a hearing on appellant's indigence was ultimately held pursuant to this Court's order. Points of error one, two, and three are overruled.

Points of error four, five, and six are premised on appellant's assertion of indigence, and we will consider them together with points seven, eight, and nine. The testimony at the hearing reflects that appellant did not immediately make bail pending appeal and remained in jail following his conviction (appellant was ordered to serve 180 days in jail as a condition of probation). Appellant was released from jail on or about August 18 on a personal recognizance bond. Thereafter, appellant posted a $5000 cash bond in a forgery case pending against him and retained counsel to represent him in the trial of that cause. Appellant testified that this money came from a cash reserve he had in a safe, but he could not remember how much that reserve totaled. Appellant was not asked and did not explain why money from this reserve fund was not used to pay counsel on appeal in this cause and to purchase a statement of facts. Appellant did testify that the money remaining in the safe was subsequently stolen by his former girlfriend.

Since his release from jail, appellant has lived with Cheryl George and shares expenses with her. Appellant testified that his share of the rent is $400 per month, but George testified that the total monthly rent is $445, of which appellant pays "what he can afford." Appellant estimated that he pays $300 per month for health insurance and $800 per year for car insurance. Appellant could not remember how much he contributes for food, utilities, or other expenses. Appellant testified that he received unemployment compensation following his release from jail, but could not remember the amount. At the time of the hearing, appellant had been employed for seven months as a recreational vehicle salesman. Appellant stated that he is paid a "minimum wage backed by commission, depending on the hours I work." Appellant testified that he was paid $5000 in May and $2000 in April. Appellant was uncertain of his salary in earlier months, although he did state that he made less than $1000 during each of his first two months of employment. Appellant testified that he has no bank accounts and owns personal property of a value less than $1000.

Appellant testified that he believed that the attorney who represented him at trial would also handle this appeal. Appellant understood, however, that counsel had been paid only for the trial, and that further payment would be required if she was to represent him on appeal. Appellant acknowledged making no payments to counsel to secure her employment for the appeal.

Appellant has the burden to prove his indigence. The determination of indigence is a matter resting in the sound discretion of the trial court and, in the absence of clear abuse, that court's ruling will not be disturbed on appeal. Rosales v. State, 748 S.W.2d 451 (Tex. Crim. App. 1987). In this cause, there is evidence from which the district court could reasonably conclude that appellant's claim of indigence is not well founded. Although appellant was either incarcerated or unemployed for several months immediately after his conviction, he had access to a large sum of money, some of which he used to post bond and retain counsel in another case. Appellant had been employed for seven months at the time of the hearing, and had been paid a total of $7000 in the two preceding months. We cannot say that the court clearly abused its discretion by failing to find that appellant is indigent. In the absence of a showing of indigence, the district court did not err by refusing to appoint counsel on appeal.

In his argument under points of error seven, eight, and nine, appellant also urges that the trial court should have ordered the preparation of a free statement of facts. As previously noted, however, no request for a free record was ever made. See Tex. R. App. P. 53(j)(2); Snoke v. State, 780 S.W.2d 210, 212-13 (Tex. Crim. App. 1989); Abdnor v. State, 712 S.W.2d 136 (Tex. Crim. App. 1986). The record supports the conclusion that appellant was not denied a statement of facts due to indigence or ineffective assistance of counsel. Points of error four through nine are overruled.

In his last point of error, appellant contends that the district court abused its discretion by refusing to allow trial counsel to withdraw as attorney of record on appeal. A motion to withdraw as counsel on appeal, however, is properly addressed to the appellate court. Tex. R. App. P. 7. (1) No abuse of the district court's discretion is shown. Point of error ten is overruled.

The judgment of conviction is affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: October 20, 1993

Do Not Publish

1. On June 25, 1993, after the record from the rule 53(m) hearing was filed in this Court, counsel filed a motion to withdraw as counsel. In light of the procedural posture of the appeal at that time and because the motion did not comply with rule 7, the motion was overruled.