Rosales v. State

• Decision Date: 09 December 1987
• Docket Number: No. 69576,69576
• Citation: 748 S.W.2d 451
• Parties: Mariano Juarez ROSALES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 451

748 S.W.2d 451

Mariano Juarez ROSALES, Appellant, v. The STATE of Texas, Appellee.

No. 69576.

Court of Criminal Appeals of Texas En Banc.

Dec. 9, 1987.

Certiorari Denied June 30, 1988.

See 108 S.Ct. 2917.

John J. Herrera, Houston, for appellant; Jose H. Rojo, Walter Boyd, of counsel.

John B. Holmes, Jr., Dist. Atty. and Kathlyn Giannaula and Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code Sec. 19.03(a)(2). After finding appellant guilty, the jury returned affirmative findings to the first two special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death. We will affirm.

Appellant raises four points of error, none of which challenge the sufficiency of the evidence, thus, recitation of the facts is unnecessary.

In his first point of error, appellant contends that the trial court erroneously denied him indigency status for purposes of securing a free transcript on appeal in violation of Texas statutory law and the Due Process Clause of the U.S. Constitution. Appellant asserts two bases for this error. First, appellant contends that the right to an "automatic" appeal granted to death penalty defendants by Art. 37.071(h), V.A.C.C.P. includes an automatic right to a free transcript in order to perfect such appeal, regardless of the defendant's financial status. Second, appellant contends that the trial court incorrectly found him non-indigent. We find both contentions to be statutorily and factually unsupportable.

Article 40.09, Sec. 5, V.A.C.C.P. sets out the procedure for obtaining a free transcript. ¹ Article 40.09, Sec. 5, effective since Jan. 1, 1966 in the same substantive form, states,

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 a 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. (emphasis added).

Under this statute, appellant has the burden of (1) filing an affidavit of indigency, ² and (2) sustaining the allegations in his affidavit at the indigency hearing. Abdnor v. State, 712 S.W.2d 136, 141 (Tex.Cr.App.1986). Under this settled Texas procedure, all appellants are required to pay for their transcript unless they can prove to the satisfaction of the trial court their inability to pay or give security therefor.

Turning to constitutional guidelines, criminal defendants, including death penalty defendants, do not have a due process right to an appeal. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Abdnor v. State, supra; 21 Tex.Jur.3rd, Sec. 1606, p. 402; 26 Tex.Jur.3rd, Sec. 4041, p. 305-309; 55 A.L.R.2d 1072. The right to appeal is purely statutory. Galitz v. State, 617 S.W.2d 949, 951 (Tex.Cr.App.1981); Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.1980). However, because Texas has chosen to statutorily provide appellate review, federal and state constitutions require that equal access be provided to appellate courts. Griffin v. Illinois, supra; Abdnor v. State, supra; Guillory v. State, 557 S.W.2d 118, 120-121 (Tex.Cr.App.1977). Equal access includes an adequate record on appeal. Article 40.09, Sec. 5, satisfies this constitutional requirement by providing a procedure whereby indigent defendants can obtain a free record. Thus, the purpose of this article is to provide equal appellate access to an indigent defendant by way of a free transcript to any defendant whose indigency prevents him from obtaining one. Drummond v. State, 675 S.W.2d 545-546 (Tex.App.--Houston [14th] 1984, pet. ref'd). The purpose is not to transfer to the taxpayer the cost of an appeal which an appellant himself can afford.

With this law in mind, we now turn to appellant's first contention that death penalty defendants should automatically receive a free transcript in order to fully take advantage of their right to an "automatic" appeal under Article 37.071(h), V.A.C.C.P. Article 37.071(h) states,

The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals within 60 days after certification by the sentencing court of the entire record unless time is extended an additional period not to exceed 30 days by the Court of Criminal Appeals for good cause shown. (emphasis added).

This statute grants death penalty defendants a direct appeal to this Court, rather than the ordinary direct appeal, granted to all other defendants, to the intermediate courts of appeals. Tex.Const. Art. V, Secs. 5, 6; Articles 4.03, 4.04, V.A.C.C.P. Polk v. State, 676 S.W.2d 408, 410 (Tex.Cr.App.1984) appeal decided 693 S.W.2d 391 (1985); Moore v. State, 677 S.W.2d 550, 553 (Tex.App.--Amarillo, 1983, pet. ref'd), cert. denied 469 U.S. 856, 105 S.Ct. 182, 83 L.Ed.2d 116; 13 St. Mary's Law Journal 211; 26 Tex.Jur.3rd, Sec. 3906, p. 58-59. The term "automatic" refers to the fact that death penalty defendants are automatically granted review by this Court rather than having to petition for discretionary review, as is required by all other defendants. Tex.Const. Art. V, Sec. 5; Art. 4.04, Sec. 2, V.A.C.C.P.; Art. 44.45, V.A.C.C.P.; Tex.Crim.App.R. 302-304. Nothing in this statute mandates a free record on appeal or provides a death penalty exception to Art. 40.09, Sec. 5. Nor does Art. 40.09, Sec. 5, itself, set out any such exception.

Appellant further argues that because of the serious and final nature of the penalty to be imposed, due process requires special appellate procedure, by way of a free transcript, to be automatically provided to capital defendants. While this Court is constantly mindful of the severe consequences imposed by a death sentence, we must also acknowledge the Legislature's equally sober awareness of such a penalty. While the Legislature has chosen to give defendants who have received the death penalty some special statutory treatment, ³ they have not seen fit to draw any exceptions to Article 40.09, Sec. 5, to provide death penalty defendants a free transcript automatically, regardless of their financial position. To the contrary, the Legislature purposely amended Article 40.09 in order to give the trial court discretion to deny a free transcript where indigency is not proven. The predecessor to Article 40.09, Sec. 5, was Article 759a, Sec. 5, which stated,

When a defendant in a felony case appeals and is not able to pay for a transcript of the evidence, he shall make an affidavit of such fact and upon the making of such affidavit the court shall order the official court reporter to make a Statement of Facts ...

In Zamora v. State, 165 Tex.Cr.R. 613, 309 S.W.2d 447 (1957), this Court held that under the strict wording of the statute, an appellant's right to a free transcript, upon proper presentation of a pauper's affidavit, was absolute. Under this statute not only was the trial court without discretion to deny a free transcript, but also had no right to conduct an evidentiary hearing to determine the truthfulness of the indigency affidavit. Zamora, supra; Wallace v. State, 138 Tex.Cr.R. 625, 138 S.W.2d 116 (1940); 55 A.L.R.2d 1072, 1109. An affidavit, standing alone, was sufficient to trigger an automatic order of a free transcript.

The Legislature, in response to the harsh results of Zamora, rewrote this article to its present Article 40.09, Sec. 5, form which gives the trial court complete discretion over the indigency determination. Warminiski v. Dear, 608 S.W.2d 621, 622-623 (Tex.Cr.App.1980). Thus, Texas, as well as most other states, vests the determination of indigency in the sound discretion of the trial court, rather than providing an absolute right to a free transcript. See generally, 55 A.L.R.2d 1972; 51 A.L.R.3d 1108; 66 A.L.R.3d 954.

In summation, due process and equal protection, as applied to the appellate process, require equal access to appellate courts, and Article 40.09, Sec. 5 fulfills this constitutional requirement by granting all indigent defendants, capital or otherwise, an opportunity to a free transcript when indigency is shown. No constitutional rights are in conflict with this valid procedural law and application of this statute does not deprive appellant of any constitutional rights. This Court is not a legislative body, and until the Legislature decides to amend Article 40.09 to provide all death penalty defendants an absolute right to a free record on appeal, this Court cannot sustain appellant's contentions. Tex.Const. Art. II, Sec. 1; Ex parte Hayward, 711 S.W.2d 652 (Tex.Cr.App.1986); Ex parte Davis, 412 S.W.2d 46, 52 (Tex.Cr.App.1967).

Turning to appellant's alternate contention that the trial court erred in denying appellant indigency status, we find that the record of the indigency hearing supports the trial court's holding.

The determination of indigency is a matter resting in the sound discretion of the trial court, and therefore is reviewable only for abuse of such discretion. In absence of clear abuse, the judge's ruling will not be disturbed on appeal.

An indigency determination is to be made on a case-by-case basis, and this Court, speaking through Presiding Judge Onion, has made it unequivocally clear that any judicial attempt to set rigid standards will not be accepted. Abdnor v. State, supra; Castillo v. State, 595 S.W.2d 552, 554 (Tex.Cr.App.1980); Zanghetti v....