Abdnor v. State

• Citation: 712 S.W.2d 136
• Decision Date: 11 June 1986
• Docket Number: No. 314-85,314-85
• Parties: John Howard ABDNOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 136

712 S.W.2d 136

John Howard ABDNOR, Appellant, v. The STATE of Texas, Appellee.

No. 314-85.

Court of Criminal Appeals of Texas En Banc.

June 11, 1986.

Ronald L. Goranson, Dallas, Oscar H. Mauzy, Grand Prairie, for appellant.

Henry Wade, Dist. Atty. and Ruth E. Plagenhoef, Karen Chilton Beverly, Gerald Banks and Mike Gillette, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of murder, and his punishment was assessed by the jury at life imprisonment. On appeal the appellant asserted in a single ground of error that the trial court erred in denying his request, as an indigent, for a statement of facts for the purpose of his appeal in violation of federal and state constitutional provisions and Article 40.09, § 5, V.A.C.C.P. The Court of Appeals found no error in the trial court's ruling denying appellant the status of an indigent for the purpose of securing a free transcription of the court reporter's notes and affirmed the conviction. Abdnor v. State, 687 S.W.2d 14, 15 (Tex.App.-Dallas 1984). We granted appellant's petition for discretionary review to determine the correctness of the Court of Appeals' decision.

Before addressing appellant's claims, we begin by reviewing the procedural history of the present case. On September 3, 1980, appellant was indicted for the murder of Janis Ballew, a nurse with whom he had allegedly become personally involved. A hearing was held to determine appellant's competency to stand trial, and on March 10, 1981, a jury found appellant to be competent.

Appellant's trial commenced on September 14, 1981, and on October 26, 1981, the jury returned a guilty verdict. Punishment was assessed at life imprisonment. Appellant's motion for new trial was overruled on December 10, 1981, and a timely notice of appeal was filed on the same day. Also on December 10, 1981, appellant filed his affidavit for a transcription of the reporter's notes or statement of facts, which was denied by the trial judge on December 14, 1981, after a hearing on indigency before the court.

Appellant applied to the Dallas Court of Appeals for a writ of mandamus to obtain a statement of facts for the purpose of the appeal of his murder conviction. The Court of Appeals ruled that since notice of appeal had been given it had statutory mandamus jurisdiction to enforce its appellate jurisdiction, however, appellant failed to sustain his burden to establish the truthfulness of his affidavit of indigency. Abdnor v. Ovard, 635 S.W.2d 864, 867-69 (Tex.App.-Dallas 1982). This Court subsequently granted appellant's petition for discretionary review and held:

"An appellant may contest the trial court's denial of indigency status on appeal, not by application for writ of mandamus. Accordingly, though we disagree with the reasons for denying mandamus relief given by the Court of Appeals, that denial is affirmed." Abdnor v. Ovard, 653 S.W.2d 793, 794 (Tex.Cr.App.1983).

Appellant pursued his appeal to the Dallas Court of Appeals reurging the identical issue concerning his request for a statement of facts on appeal. The Court of Appeals decided that appellant was not entitled to a free transcript of the evidence due to his failure to personally testify to the truthfulness of his own affidavit of indigency. Abdnor v. State, 687 S.W.2d, supra, at 16. Following the denial of appellant's motion for rehearing by the Court of Appeals, appellant filed his petition for discretionary review in this Court.

At the indigency hearing based upon appellant's affidavit filed pursuant to Article 40.09, § 5, V.A.C.C.P., on December 14, 1981, the appellant called Sandra Day, the official court reporter for the 265th District Court. She testified she estimated the statement of facts would amount to 7,000 pages at $3.50 per page and cost $24,500. She related that she would require a $12,500 down payment before commencing the preparation of the transcription of her notes, and when it was half finished she would require the payment of the balance. On cross-examination she testified she had prepared excerpts of appellant's competency to stand trial hearing at the request of appellant's father as his "personal copy, an extra copy." Day also testified that on December 7, 1981, some seven days earlier, appellant's father had paid $7,000 as a "down payment" towards a personal copy of the entire transcript. Nothing indicated Day had commenced the preparation of the statement of facts.

John Abdnor, appellant's father, testified he had been appointed by the Dallas County Probate Court as the 41-year-old appellant's guardian in March 1981; that appellant was unemployed, and since July 1980 appellant has been confined in jail or a mental hospital. As guardian he familiarized himself with appellant's assets and liabilities, and his ability to earn income. He stated the appellant had no household furnishings, no stocks or bonds or real estate or any assets except as listed on a financial statement of total assets and liabilities and reflecting a negative net worth of $10,000. ¹ The record reflects:

"Q. Okay, now, in fact, your son has no assets or any income to pay for the--himself to pay individually to pay for this statement of facts, the transcript of the court reporter notes in this case?

"A. I don't believe he could pay for anything, sir."

Appellant's father testified that no request had been made for court-appointed counsel on appeal as he didn't "want to take those kind of chances, sir" and that he had personally retained appellate counsel for his son. He further testified he could pay for the statement of facts but "under protest."

Jene Gravley, accountant for appellant's father, was called by the appellant. She had helped prepare appellant's income tax returns for the years 1978, 1979 and 1980 and knew of no additional income that was not recorded in such returns, which showed a total income of $4,028.41 in 1978, $3,523.67 in 1979, and $5,716.79 in 1980.

Appellant also introduced his own affidavit of indigency, the financial statement showing a negative net worth of $10,406.22 as of October 31, 1981, the income tax returns, an income statement for January through October 31, 1981 showing a total income of $2,823.14 without deduction of expenses, etc., without objection. Although the appellant's witnesses were cross-examined, the State offered no evidence to rebut appellant's claim of indigency in order to obtain a statement of facts for the purpose of appeal. Before the close of the hearing the trial judge stated for the purpose of the record appellant had earlier made bonds of $35,000, $100,000 and $95,000. Whether such bonds were personal or surety bonds was not revealed. The trial court introduced Court Exhibits 1 and 2, probate court records, appointing appellant's father as guardian and requiring him to attend appellant's trial.

At the conclusion of the hearing, the trial court simply denied appellant's request for a statement of facts without charge.

Since an appellate review of criminal convictions is provided in this state, a Texas trial judge has a duty under the federal and state constitutions to provide an indigent defendant with an adequate record on appeal. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Eskridge v. Washington 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1959); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Williams v. Oklahoma, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Ex parte Mays, 510 S.W.2d 606 (Tex.Cr.App.1974); Cartwright v. State, 527 S.W.2d 535 (Tex.Cr.App.1975); Guillory v. State, 557 S.W.2d 118, 120-121 (Tex.Cr.App.1977).

Once avenues of appellate review are established, they must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. See Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577, 581 (1966); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341, 352 (1974); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, 633, n. 4 (1974); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, 723, n. 11 (1973); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

The procedure for obtaining a transcription of the court reporter's notes without charge is set forth in Article 40.09, § 5, V.A.C.C.P., which provides:

"5. Responsibility for Obtaining a Transcription of the Reporter's Notes

"If a party desires to have all or any portion of a transcription of the court reporter's notes included in the record, he shall so designate with the clerk in writing and within the time required by Section 2 of this Article. Such party shall then have the responsibility of obtaining such transcription from the court reporter and furnishing the same to the clerk in duplicate in time for inclusion in the record and the appellant shall pay therefor. The court will order the reporter to make such transcription without charge to appellant if the court finds, after hearing in response to an affidavit filed by the appellant not more than 20 days after giving notice of appeal that he is unable to pay or give security therefor. Upon certificate of the court that this service has been rendered, payment therefor shall be made from the general funds by the county in which the offense is alleged to have been committed in a sum to be set by the trial judge. The court reporter shall report any portion of the proceedings requested by either party or directed by the court." (Emphasis supplied.)

Such statute places the responsibility for obtaining a transcription of the court reporter's notes on the party who...