IN THE INTEREST OF K.C.B., A CHILD

NO. 07-07-0032-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 19, 2007

                                       ______________________________

IN THE INTEREST OF K.C.B., A CHILD

_________________________________

FROM THE 100^TH DISTRICT COURT OF COLLINGSWORTH COUNTY;

NO. 6951; HONORABLE PHIL VANDERPOOL, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON MOTION FOR REHEARING

          Appellant, by her motion for rehearing alleges that she did in fact file a Statement of Points of Error to Be Relied On, although it was admittedly filed premature. The record reveals that appellant filed the Statement after the associate judge’s order of termination. Subsequently, appellant sought and was granted a trial de novo. Accordingly, the associate judge’s ruling was not a final ruling. The statute provides that the required Statement of Points to Be Relied on By Appellant on Appeal must be filed after “a final order rendered under this subchapter.” Tex. Fam. Code Ann. § 263.405(a) (Vernon Supp. 2006).

 

          Accordingly, appellant’s contention is without merit and the motion for rehearing is denied.

 

                                                                           Mackey K. Hancock

                                                                                     Justice

kept the car, he would have $5,200. He did not know how much his wife spent on food each month. When queried about his monthly phone bill estimate in his affidavit, he averred that he had lost his phone but, before he did so, his bill ran from $400 to $600 per month because "the farm would be calling me." He had no records to verify his gasoline expense and admitted that the figure of $150 per week was an estimate. He also admitted that his income was seasonal and at the time of the execution of his affidavit, it was a slack time of the year.

Appellant further admitted that in March of 2003, he had received another felony DWI charge in Lubbock County and the authorities were using the charge here to enhance that charge to felony grade and he did not want that to happen. He had not raised the lack of counsel challenge to the instant offense until after the Lubbock County charge was made.

The State does not contest that appellant had a legal right to counsel at the trial of this offense and that if he was not financially able to employ counsel, he was entitled to the appointment of such counsel. See Alabama v. Shelton, 535 U.S. 654, 662, 122 S.Ct. 1764, 1770, 152 L.Ed.2d 188 (2002); Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979); Tex. Code Crim. Proc. Ann. art 1.051(b) & (c) (Vernon Supp. 2004). However, it contends that under this record, appellant did not show that he was "not financially able to employ counsel" within the purview of article 1.051(b) of the Code of Criminal Procedure.

Subsequent to the habeas hearing, the trial judge entered his findings of fact and conclusions of law. In findings of fact relevant to this discussion, he found that after appellant had been notified prior to the trial that no attorney would be appointed, at the trial, he did not ask for a hearing on the refusal, nor did he otherwise complain of the refusal. He also found that at the trial on the merits, appellant appeared and reached a plea bargain with the prosecutor. Appellant signed a written waiver of lawyer form in which he certified that he could read the English language, that he had the right to have a lawyer, but that he did not want the court to appoint a lawyer. On the same day, the trial court honored the plea bargain, which resulted in appellant being placed on probation for a period of two years. The court also found that appellant continued on probation until March 2, 2003, when appellant was again arrested for DWI. That DWI offense was charged as a felony because of two prior convictions of DWI, one of which was the Hale County conviction discussed here. The habeas judge also found that appellant made no complaint that he did not intelligently and voluntarily waive his right to counsel in the Hale County case prior to the March 2, 2003 arrest. He further found that there were no coercive circumstances present surrounding appellant's waiver. Based upon its fact findings, the habeas court concluded that appellant had knowingly and voluntarily waived his right to counsel in the Hale County DWI case and that he was lawfully confined.

As appellant recognizes, whether an accused is indigent depends upon the facts of each individual case. See Ex parte Bain, 568 S.W.2d 356, 361 (Tex. Crim. App. 1978). At the habeas hearing, the judge was the trier of fact and we are not at liberty to disturb any finding that is supported by the record. Dewberry v. State, 4 S.W.3d 735, 747-48 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Under the facts adduced in the affidavit, we cannot say that the habeas judge abused his discretion in concluding that under the facts set out in the affidavit, appellant had not shown the lack of assets and due diligence to raise money to hire counsel through the mortgaging, sale, or other use of those assets. Moreover, also under this record, we cannot say the habeas judge abused his discretion in finding the record sufficient to justify a conclusion that appellant knowingly, intelligently, and voluntarily waived his right to counsel at the trial on the merits and there were no coercive circumstances present surrounding that waiver.

Accordingly, appellant's issue is overruled and the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. 75.002(a)(1) (Vernon Supp. 2004).