Scott v. State
| Decision Date | 12 June 2002 |
| Docket Number | No. 10-01-169-CR.,10-01-169-CR. |
| Citation | 80 S.W.3d 184 |
| Parties | Richard SCOTT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Richard Scott, Hamilton, pro se.
B.J. Shepherd, Hamilton County Dist. Atty., Martin L. Peterson, Hamilton County Asst. Dist. Atty., Meridian, for appellee.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
This appeal involves Richard Scott's assertion of indigence on appeal, his right to a free appellate record, and his right to court-appointed counsel. The trial court refused to find Scott indigent because: (1) it did not have before it a pleading requesting such a finding; and (2) Scott and his witnesses refused to provide testimony "under penalty of perjury," stating that to do so would be contrary to their religious beliefs. We will reverse and remand this cause for further proceedings.
A grand jury presented an indictment against Scott on June 26, 2000 charging him with securing the execution of a document by deception. Throughout the course of the proceedings in the court below, Scott filed numerous pleadings asserting that he is indigent and that he is unwilling to provide testimony under "oath" or "affirmation" due to his religious beliefs.
On July 12, Scott filed a "Motion to Proceed Impecuniously" in which he sought leave of the trial court to proceed without payment of costs "in regard to the costs of process, evidence, copying, trial transcripts, and all other related and assorted expenses of prosecuting his defense." Scott concluded this motion with the following statement:
Due to petitioner's sincerely and truly held religious training and belief against taking, swearing or affirming any oath, whether or not under penalties of perjury, or the giving of any affidavit by swearing of affirming an oath, the following witnesses who hold to the same religious beliefs as himself and are of lawful age, do hereby verify the truth and accuracy of all that has been related herein, and as first-hand witnesses to all proceedings in this matter to date.
Scott filed a request that the court provide him funds to hire counsel of his choice on July 14. Scott based this request on his alleged indigence and concluded it with the verification quoted above.
On August 23, Scott filed a "Notice and Demand for Flexibility of Rules to Secure the Free Exercise of Religious Beliefs and Practices" in which he stated:
"The Defendant hereby gives this NOTICE and DEMAND that this court, in the above-numbered cause, interpret and apply its local and State of Texas rules, regarding Oaths and Affirmations, in a manner of flexibility that is consistent with this court's Constitutional obligations to secure the free exercise of religious beliefs, under the First Article of the Bill of Rights, of the Constitution for the united [sic] States of America, and its companion clause in the Texas Constitution."
Scott supported this notice with an "As If `Affidavit'" setting forth supporting biblical and legal authorities. He concluded this "affidavit" with the same verification quoted above.
A jury convicted Scott of the offense charged and assessed his punishment at one year in a state jail facility and a $2,000 fine. The court imposed sentence on February 26, 2001. Scott filed his notice of appeal the same day. We docketed Scott's appeal of the conviction under cause number 10-01-077-CR.
Scott filed requests for preparation of the clerk's record and the reporter's record with the district clerk on the thirtieth day after imposition of sentence. He requested that both records be prepared and filed in this Court without charge because of his alleged indigence. Scott stated in the request for the clerk's record that he was entitled to a free appellate record "since Appellant is indigent and has requested to proceed in forma pauperis."
On March 9, Scott filed a "Motion to Proceed Impecuniously" with the Clerk of this Court. We denied this motion on May 2 because he filed it with the wrong court.
At Scott's request, the trial court held a hearing on his "Motions to Proceed Impecuniously" on May 15. Scott called his first witness, who informed the court that he would not testify under "oath" or "affirmation" because of his religious beliefs. The court refused to allow him to testify. The same happened with Scott's second witness. Scott then called his mother-in-law Arveta Dark to testify, because she was willing to testify under oath. After she testified for some period of time, the judge informed Scott that he could not find a copy of Scott's March 2001 indigence motion in the file.
Scott asked the court to allow him to proceed on the July 2000 indigence motion. Initially, the court agreed. After Dark answered two further questions however, the court stopped the proceedings and informed Scott that the July 2000 motion was "totally insufficient." Scott then attempted to make an oral motion "to proceed impecuniously." The court asked Scott to provide testimony under oath and the following exchange occurred:
Scott: Due to my sincerely and truly held religious beliefs and convictions, I am precluded from swearing or affirming under oath, Your Honor, but I will state for and on the record that I vow to my heavenly Creator that I will tell the truth and that I will do so under any penalties that are equivalent to the penalties for perjury for those who swear or affirm oaths.
Court: I want you to go ahead and say you will do it under the penalties of perjury. If you'd do that, I'm fixing to let you testify.
Scott: Well, I have a problem with the word perjury itself as being relating to swearing or affirming an oath, Your Honor, but I will do so under any penalty that is equivalent thereto.
Court: What penalty do you suppose that's equivalent thereto, Mr. Scott —
Scott: Well, Your Honor —
Court — perjury is — it's either perjury or it's not.
Scott: I assume that it's any penalty that, could be invoked for not telling the truth and for — you know, telling a lie or a misrepresentation.
Court: You — you're not going to get to split that hair with me, Mr. Scott. It's either going to be perjury or not. If you'll do — if you'll — if you'll affirm under the penalty of perjury I am perfectly willing to hear your testimony.
This exchange continued briefly before the judge stated again that he would not "split that hair" with Scott. Scott objected on First Amendment grounds.
Scott then asked the court to appoint counsel to represent him "because I cannot afford that and have no way to pay for that." The court did not rule on this request.
The court signed the following order on May 29:
On the 15th day of May, 2001, came on to be heard the motion of Defendant for appointment of counsel. After hearing the evidence, the court finds that Defendant has not completed under oath a questionnaire concerning his financial resources nor did he respond under oath to an examination regarding his financial resources nor did he sign under oath a certification that he was without means to employ counsel of his own choosing and further finds that the evidence presented was insufficient to show that Defendant is indigent at this time.
Accordingly, the court finds it cannot properly determine whether Defendant is indigent or entitled to assistance of counsel at public expense and declines to appoint an attorney for Defendant, without prejudice.
Scott's first issue challenges the court's refusal to allow his witnesses or him to testify regarding his indigence. He contends that this resulted in the denial of his right to a free appellate record. The State responds that no error is shown because Scott did not file a timely affidavit of indigence.
An indigent criminal defendant has a constitutional right to a free appellate record in a first appeal of right. See Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S.Ct. 585, 590-91, 100 L.Ed. 891, 899 (1956); Abdnor v. State, 712 S.W.2d 136, 139 (Tex. Crim.App.1986). Rule of Appellate Procedure 20.2 provides the procedures an indigent appellant must follow to obtain the record. See TEX.R.APP. P. 20.2.
Within the time for perfecting the appeal, an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge. If after hearing the motion the court finds that the appellant cannot pay or give security for the appellate record, the court must order the reporter to transcribe the proceedings.
An indigent appellant who desires a free appellate record must: (1) exercise due diligence in asserting his indigence by timely filing the required motion and affidavit; and (2) present evidence to sustain his assertion of indigence in the hearing on the motion. See Gray v. State, 928 S.W.2d 561, 562 (Tex.Crim.App.1996); Abdnor, 712 S.W.2d at 140-41; Sparkman v. State, 55 S.W.3d 625, 632-33 (Tex.App.-San Antonio 2000, no pet.).
The Code Construction Act defines an "affidavit" as "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office."1 TEX. GOV.CODE. ANN. § 312.011(1) (Vernon 1998); see also Vaughn v. State, 146 Tex. Crim. 586, 590, 177 S.W.2d 59, 61 (1944) (op. on reh'g) ("An affidavit is an oath reduced to writing and sworn to or affirmed before some officer who has lawful authority to administer it.") (quoting Ex parte Scott, 133 Tex. 1, 10, 123 S.W.2d 306, 311 (1939)); State v. Bishop, 921 S.W.2d 765, 767 (Tex.App.-San Antonio 1996, no pet.) (same); accord Guinn v. Bosque County, 58 S.W.3d 194, 198 (Tex.App.-Waco 2001, pet. denied).
The Act provides additional definitions regarding the terms "oath...
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