McFatridge v. State
McFatridge v. State
Opinion of the Court
OPINION
delivered the opinion of the Court
We granted the appellant’s petition for discretionary review in this cause to examine the court of appeals’s holding that the trial court did not abuse its discretion in finding that the appellant was not indigent for purposes of obtaining a free record and the assistance of counsel for appeal. Because we believe that the trial court’s decision is reasonably supported by the record, we find no abuse of discretion and affirm the judgment of the court of appeals.
FACTS AND PROCEDURAL POSTURE
In January of 2008, the trial court found the appellant, who was represented by appointed counsel, guilty of driving while intoxicated. The appellant gave timely notice of appeal and filed a sworn statement of indigency requesting that the trial court appoint her counsel for appeal. She also filed a motion for a free court reporter’s record. In her sworn statement of indi-gency, the appellant listed her monthly income as $550, and her monthly “general expenses” as $484.
Over the course of three days in late February of 2008, the trial court held a hearing to determine whether the appel
The State countered with evidence of the appellant’s assets.
The State also introduced evidence to impugn the veracity of the appellant’s sworn statement of indigency. The appellant’s indigency statement had implied that a portion of her monthly expenses was devoted to the support of minor children. In order to show that the appellant had no dependent children presently living with her, the State offered a copy of a child-support lien, filed in 2004, showing “unpaid support in the amount of $5,834.00.” The State requested judicial notice of the lien to show that the appellant had no dependents living with her that would contribute to her expenses. Although there were no objections to admission of the child-support lien, the trial court neither took judicial notice of it, as requested, nor ever formally admitted it into evidence.
The trial court then asked the appellant to supply a copy of her 2006 tax return, which she had submitted in support of an earlier affidavit requesting counsel for her trial. After the State rested, the appellant also offered court records from her unsuccessful attempt to have tenants evicted from her second, non-exempt property in August 2000, attempting to show that this real property neither generated income nor was readily convertible to cash, and therefore should not be considered as an asset. At the conclusion of the hearing the trial court orally announced that it found the appellant “no longer indigent.”
Later, the trial court issued written findings of fact and conclusions of law. Based upon the appellant’s income-tax return, the trial court found that she had an income of $10,905 for the 2006 tax year.
The appellant, representing herself, appealed the trial court’s indigency determination to the Tenth Court of Appeals. In a published opinion, the court of appeals held that the trial court’s “findings [were] supported by the evidence.”
STANDARD OF REVIEW
A defendant is indigent for purposes of the appointment of appellate counsel if he is “not financially able to employ counsel.”
This Court has adopted a two-step process to guide courts in making indigency determinations for purposes of a free record for appeal. First, the defendant must make a prima facie showing of indigency.
A reviewing court may not consider facts that were not developed in the record.
ANALYSIS
At the hearing, the appellant presented some evidence supporting her indi-gency by providing her sworn statement and testimony about her rent expenses. We agree with the court of appeals that the appellant made a prima, fade showing of indigency and satisfied her initial burden of production,
The Appellant’s Income
In Navarro County, an appellant in 2008 was not indigent if either his take-home wages or salary or his net self-employment income exceeded $10,400 or the value of his non-exempt assets exceeded $1,000 or the estimated cost of obtaining competent legal counsel.
The Appellant’s Non-Exempt Assets
The appellant now argues that the trial court abused its discretion by finding that the appellant could use her assets to finance her appeal. She tries through her brief to introduce new facts to explain the evidence in the record in order to resolve ambiguities in her favor on appeal. For example, the appellant claims that the record contains no evidence to show that her
Similarly, if the appellant wished to respond to the State’s evidence tending to show that the appellant actually owned the second, non-exempt real property, the appellant should have presented additional, supporting evidence to that effect at the indigency hearing. The State presented county records showing that the appellant was the record owner of that property, and that it had an appraised value of $6,670. To rebut the State’s presentation, the appellant produced court records dismissing the eviction proceedings brought by the appellant for her second, non-exempt property for lack of jurisdiction. The appellant’s counsel argued that this dismissal showed that the appellant did not have clear title to the property, and that it was therefore unavailable for purposes of raising funds for her appellate costs. But there was no explanatory testimony to this effect, and the appraisal district record indicates that the property was conveyed to the appellant in 2002, after the date of the attempted eviction proceedings in 2000. On this state of the record, the trial court could rationally have found that the appellant had at least $9,670 ($3,000 in antiques plus $6,670 in non-exempt real property) worth of assets to devote to the costs of her appeal.
The appellant argues that her child-support obligation should have been considered, positing that the failure to do so constituted an abuse of discretion. The notice of child-support lien, dated August 2004, states that the appellant owed $5,834 in unpaid support. Assuming the debt was still wholly outstanding, and subtracting this amount from the $9,670 of assets the trial court determined that the appellant owned, would leave appellant with $3,836 of assets — an amount that still exceeds Navarro County standards for indigency.
. Although she listed the $550 as "Gross Wage and Salary Income,” the appellant did not list any deductions normally attendant to this category of income, such as income tax, social security, or health insurance, nor did she attach a pay stub. The record suggests that the appellant was actually self-employed, buying, restoring, and selling antiques. Nevertheless, she listed nothing under the heading, "Self-Employment Income.” Additionally, although the appellant attached a handful of receipts to her statement, those receipts do not add up to the $484 worth of "general expenses” that she claimed in her sworn statement of indigency.
. See Tex.R.App. P. 20.1(e) ("... the court reporter ... may challenge the claim of indigence by filing — in the court in which the affidavit [of indigency] was filed — a contest to the affidavit.”).
. Again, these receipts do not add up to the amount of monthly expenses she had listed on her sworn statement of indigency. However, the trial court never called for further documentary verification of her monthly expenses, and so the appellant’s declaration of expenses, having been sworn to, "should be accepted unless [it is] suspect in a manner that verification would not remedy.” Whitehead v. State, 130 S.W.3d 866, 875 (Tex.Crim.App. 2004).
. The appellant said nothing about any assets in her statement of indigency. She made no mention of property, either real or personal, that might be readily liquidated to pay the costs of an appeal.
. There was conflicting evidence whether the appellant actually owned the house in which she lived. The trial court ultimately found this property to be subject to a homestead exemption, and therefore did not consider it an asset for purposes of determining the appellant's indigency.
. The appellant argues that the trial court mistakenly accepted the appellant’s gross reported income for 2006, which was $10,905,
. Navarro County Standards Relating to the Appointment of Counsel to Indigents § XII (2) (2002).
. McFatridge v. State, 262 S.W.3d 907, 912 (Tex.App.-Waco 2008).
. Id. Like the trial court, the court of appeals made no separate determination with respect to the free counsel and a free record, holding only that the record supported the trial court's determination that the appellant "is not indigent.” Id.
. Appellant's Petition for Discretionary Review, at 2.
. Tex Code Crim Proc. art. 1.051(b).
. Tex.R.App. P. 20.2.
. Whitehead v. State, 130 S.W.3d 866, 874 (Tex.Crim.App. 2004) (quoting Gray v. Robinson, 744 S.W.2d 604, 607 (Tex.Crim.App. 1988)).
. Whitehead, 130 S.W.3d at 878.
. Id. As we have noted, however, neither the trial court nor the court of appeals seems to have made these determinations separately.
. TexCode Crim. Proc art. 26.04(m).
. TexCode Crim. Proc. art. 26.04(7).
. Whitehead, 130 S.W.3d at 878.
. Id. at 874.
. Id. at 875-76. Once the defendant has made out a prima facie case for indigency, both the burden of production and the ultimate burden of persuasion fall upon the State to show that the defendant is not indigent. This does not invariably mean that the State must actually present additional evidence. Rather, it simply means that there must be some basis in the record, from whatever source — including evidence embedded in the defendant's own prima facie case — to question the defendant's indigency. Unless there is such evidence in the record from any source, however, the fact that the burden has shifted to the State means that the trial court must accept the defendant's prima facie case as determinative of indigency. Id.
. Id.
. Whitehead, 130 S.W.3d at 874 (quoting Snoke v. State, 780 S.W.2d 210, 213 (Tex.Crim.App. 1989)).
. Id. at 879.
. See id. at 872 ("General considerations governing appellate review apply here. An appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent the prohibition by submitting an affidavit for the first time on appeal.”) (footnote omitted); see also Janecka v. State, 937 S.W.2d 456, 476 (Tex.Crim.App. 1996) (an appellant could not raise a claim that he faced severe depression and stress while waiting for his case to be appealed because the appellant had failed to establish a factual record to support his claim).
. McFatridge v. State, 262 S.W.3d at 912.
. Navarro County Standards Relating to the Appointment of Counsel to Indigents § XII (2002); 2008 Annual Update of the HHS Poverty Guidelines, 73 Fed. Reg. 3971 (Jan. 23, 2008).
. The court of appeals compounded the trial court's mistake when it observed:
The [trial] court based its finding regarding [the appellant's] income on her 2006 federal income tax return in which she claimed gross business income of $10,905 (and net profit of $5,990). [The appellant] offered no evidence to explain how or why her income in 2008 is less than it was two years earlier.
McFatridge, supra, at 912. The Navarro County standard looks to the “net household income” of a self-employed person, not his gross business income, in determining indi-gency. It is this "net household income” that must exceed $1,000 or the cost of obtaining competent legal counsel to entitle an appellant to indigent status. In fact, the appellant's annual income ($550 x 12 months = $6,600) was actually more than her "net profit” in 2006, but nevertheless well below the $ 10,400 poverty level.
. Appellant's Brief on the Merits, at 18.
. Whitehead, 130 S.W.3d at 872.
. Navarro County Standards Relating to the Appointment of Counsel to Indigents § XII (2)(a)(2) (2002). In her brief on discretionary review, the appellant argues that, by law, the appellant would also owe interest on the unpaid child support. While this may well be trae, there is nothing in the record to support this assertion, and no indication of what that interest might have amounted to by the time of the indigency hearing.
. We note that the court of appeals made no mention whatsoever of the notice of a child-support lien in its opinion on appeal.
. In her motion for a free court reporter’s record, the appellant asserted that the court reporter had estimated the cost of the record to be only $2,000. Here, we give the appellant the benefit of the doubt by relying on the greater amount, $3,000, that the court reporter testified she told the appellant was the estimated cost of the record during their mid-trial conversation.
Concurring Opinion
concurring.
A trial judge’s determination of indigen-cy is a question of law. The two-step process articulated in Snoke v. State, 780 S.W.2d 210 (Tex.Crim.App. 1989), first requires a defendant to make a prima facie showing of indigency. If the defendant satisfies this burden, the “trial court should accept the defendant’s evidence absent some reason in the record for not doing so.” Whitehead v. State, 130 S.W.3d 866, 875 (Tex.Crim.App. 2004). Therefore, the trial judge does not have the discretion to completely ignore uncontroverted evidence of a defendant’s financial situation.
The second step allows the State to present evidence showing that the defendant is not indigent. While this part of the determination may allow the trial judge some discretion to believe certain documents or witnesses and disregard others, at the end of the day, the trial judge is either right or wrong about whether a defendant is indigent. In Whitehead we stated, “The trial court is not completely free to disbelieve the defendant’s allegations concerning his own financial status, but the trial court may disbelieve an allegation if there is a reasonable, articulable basis for doing so, either because there is conflicting evidence or because the evidence submitted is in some manner suspect or determined by the court to be inadequate.” Id. at 876.
The court of appeals ultimately held that the trial court did not abuse its discretion. In truth, the court of appeals conducted a de novo review, considering the evidence presented to the trial court by the defendant and the State and determining that the trial court was correct. I agree with
Reference
- Full Case Name
- Melanie D. McFATRIDGE, Appellant, v. the STATE of Texas
- Cited By
- 70 cases
- Status
- Published