Rhoda v. State, 49381
| Decision Date | 30 October 1974 |
| Docket Number | No. 49381,49381 |
| Parties | Andre RHODA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jesse R. Funchess, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of aggravated assault on a peace officer; the punishment, a fine of Two Hundred Fifty Dollars.
The complaint and information charge that appellant committed an aggravated assault on a City of Houston police officer on or about December 28, 1972. Apparently he was arrested on the same day, inasmuch as the record reflects he made a Four Hundred Dollar bond on that date.
A jury trial was had on April 25, 1973. Following the several motions for new trial, which were overruled on August 28, 1973, appellant was sentenced and gave notice of appeal. The trial court ordered the original bond to remain in effect pending appeal.
On September 12, 1973, appellant's counsel filed an appellate brief in the trial court setting forth four grounds of error. The clerk of the trial court prepared a record, without a transcription of the court reporter's notes, and notice of completion of the record was sent by certified mail to appellant's counsel on April 4, 1974. No objections were made to the record by appellant, and the trial court approved the record on April 24, 1974. There is nothing in the record to show that appellant requested the court reporter to prepare a transcription of his notes. 1
Five days after the record was approved, appellant's retained counsel 2 filed a motion requesting permission to withdraw, stating that appellant had failed to pay the 'contracted fees' and had failed to give his counsel 'assurance that the fees will be paid.' The request of counsel to withdraw was denied by the trial court. Almost four months (August 21, 1974) after the record was approved by the trial court, appellant filed an affidavit of indigency.
In Sowell v. State, 505 S.W.2d 877 (Tex.Cr.App.1974), we abated an appeal on motion for rehearing upon an indication of indigency. There we stated:
'Appellant's conviction was affirmed by this Court on January 9, 1974, in a per curiam opinion (No. 48,039). At the time appellant's conviction was affirmed by this Court no brief had been filed in the trial court in appellant's behalf, the record was before us without a transcription of the court reporter's notes, and no questions based on indigency had been raised.
'On January 28, 1974, appellant filed a 'pro se' motion for leave to file a motion for rehearing, and a pauper's oath. Therein appellant contends that (1) he is indigent and has been so since the beginning of his appeal, therefore not allowing him to afford an attorney to perfect his appeal to this Court, and (2) that because of his financial condition, he could also not afford to send up the statement of facts. Appellant requests that this Court allow him time so that he may have an attorney appointed for him to further perfect his appeal and that he may be allowed to file a pauper's affidavit in order that he may send up a statement of facts to this Court.
'The issue before this Court is: when the first indication of indigency is made after the record is filed in this Court, will the case be abated for purposes of determining an appellant's indigency for purposes of appeal? We answer this question under the facts in the case at bar in the affirmative.
'In Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970), this Court stated:
(Emphasis added.)
Here, however, unlike the situation in Sowell v. State, supra, we find no indication that counsel withdrew at a critical stage of the proceedings. Indeed, the record reflects that counsel filed a brief in behalf of appellant,...
To continue reading
Request your trial
-
Abdnor v. State
...State, 401 S.W.2d 814 (Tex.Cr.App.1966), cert. den. 385 U.S. 941, 87 S.Ct. 310, 17 L.Ed.2d 220; Ex parte Thorbus, supra; Rhoda v. State, 514 S.W.2d 937 (Tex.Cr.App.1974). In fact, the convictions in Castillo (571 S.W.2d 6), Hoagland and Weeks were affirmed in the absence of a statement of f......
-
Vanderbilt v. State
...573 S.W.2d 16; Stockton v. State, Tex.Cr.App., 487 S.W.2d 69; Johnson v. State, Tex.Cr.App., 466 S.W.2d 744. In Rhoda v. State, Tex.Cr.App., 514 S.W.2d 937 we "The right of an indigent appellant to a free statement of facts is independent of the requirement that a statement of facts, free o......
-
Ward v. State
...decisions in Zamora v. State, 568 S.W.2d 355 (Tex.Cr.App.1978); Hoagland v. State, 541 S.W.2d 442 (Tex.Cr.App.1976); Rhoda v. State, 514 S.W.2d 937 (Tex.Cr.App.1974) require the appellant's conviction to be affirmed. None of these cases, however, is on point. In each case this Court simply ......
-
Weeks v. State, 43392
...cert. denied, 385 U.S. 941, 87 S.Ct. 310, 17 L.Ed.2d 220; Ex parte Thorbus, 455 S.W.2d 756 (Tex.Cr.App.1970); Rhoda v. State,514 S.W.2d 937 (Tex.Cr.App.1974). We conclude that appellant's action in becoming a fugitive from justice for two years when he had retained counsel and was not an in......