Shivers v. State
| Decision Date | 09 February 1994 |
| Docket Number | No. 08-92-00225-CR,08-92-00225-CR |
| Citation | 873 S.W.2d 704 |
| Parties | James SHIVERS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Ross Teter, Dallas, for appellant.
John Vance, Criminal Dist. Atty., Dallas, for appellee/State.
Before BARAJAS, C.J., and KOEHLER and LARSEN, JJ.
OPINION ON MOTION FOR REHEARING
We grant Appellant's motion for rehearing, withdraw our opinion and judgment of January 7, 1994, and substitute the following opinion.
This is an appeal from a conviction for the offense of possession of cocaine. Upon a finding of guilt by the trial court, punishment was assessed at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 40 years. We affirm the judgment of the trial court.
Appellant pleaded guilty to the trial court without the benefit of a recommendation from the prosecutor on February 19, 1992. The court found Appellant guilty, and on March 27, 1992, assessed his punishment at 40 years' confinement. On April 9, 1992, Appellant, acting pro se but presumably with the advice of counsel, signed and filed a pre-printed document which was entitled "Defendant's Notice of Appeal, Proof of Indigency, Designation of Record & Request for Appointment of Counsel". 1
The form contains a notice of appeal and a paragraph entitled "Indigency of Defendant". The paragraph relating to the indigency claim reads as follows:
Pursuant to Chapter 32, Texas Civil Practice and Remedies Code, Defendant states under penalty of perjury that he is presently incarcerated in the hereinafter named penal institution and that he is an indigent person without financial means to employ counsel or to pay any of the costs relating to the preparation of a record of trial on appeal. This Court has previously made a finding that Defendant is indigent and that adjudication of indigency has not been modified or set aside.
The designation of record on appeal is found in a separate paragraph and is as follows:
Defendant moves for the Court to order the Court Clerk and the Court Reporter to prepare for filing a record of trial at no cost to him. Defendant designates for inclusion in such record the indictment or information, docket sheet, all warrants and affidavits of probable cause, the Judgment, the Sentence, all bills of exception, Defendant's affidavits of indigency, all motions and other pleadings of the parties, all orders of the Court, presentence report and all reports and notes relating to Defendant and this cause prepared by a probation officer acting under the direction of the Court, statement of facts relating all evidence presented in this cause. [Emphasis added].
In this same form, Appellant alleged that the trial court failed to recuse himself and that trial counsel was ineffective for failing to properly advise him. 2 Neither of these claims have been raised as points of error on appeal. By this same document, Appellant moved the trial court to appoint Ross Teter as his appellate counsel of choice. Although there is no evidence in the appellate record that Appellant's motion for a free statement of facts was presented to the trial court, or that an indigency hearing was held, or that Teter was ever appointed by the trial court, the record does reflect the entry of appearance of Ross Teter, Attorney at Law, of Dallas, Texas, acting on behalf of Appellant. During the course of this appeal and after filing numerous motions on behalf of Appellant, Teter advised this Court that he was not Appellant's attorney since he had not been appointed to represent him. He suggested that the appointment of trial counsel had never been terminated. We ordered the trial court to hold a hearing to determine who represented Appellant on appeal. After that hearing, the trial court made a finding of fact that Teter was retained to represent Appellant on this appeal. We will not disturb that finding.
After several extensions of time were granted, the statement of facts was filed on September 7, 1993. We have reviewed the statement of facts and note that it does not contain a transcription of the entire guilty plea. The statement of facts contains the conclusion of the guilty plea and the sentencing which occurred on March 27, 1992, but does not contain the initial portions of the guilty plea which occurred on February 19, 1992. The record does not reflect who paid for the partial statement of facts that was filed.
In a single point of error, Appellant contends that he was denied a free statement of facts on appeal, and consequently, is entitled to a new trial under TEX.R.APP.P. 50(e). Although Appellant bases his point of error on Rule 50(e), he does not claim on appeal that he has been denied the statement of facts because the court reporter's notes from his guilty plea have been lost or destroyed. Thus, Rule 50(e) has no application here. He argues that he should have been provided with the statement of facts from his guilty plea free of charge because he satisfied all of the requirements of TEX.R.APP.P. 53(j)(2). We do not agree.
It is the duty of the trial court to provide an indigent defendant with an adequate record on appeal. Snoke v. State, 780 S.W.2d 210, 212 (Tex.Crim.App.1989); Abdnor v. State, 712 S.W.2d 136, 139 (Tex.Crim.App.1986). However, a defendant is not entitled to a free statement of facts on appeal absent proof of indigency. Rosales v. State, 748 S.W.2d 451, 453 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2917, 101 L.Ed.2d 949 (1988); Skidmore v. State, 808 S.W.2d 708, 709 (Tex.App.--Texarkana 1991, no pet.).
The procedure by which a defendant can obtain a record is set out in TEX.R.APP.P. 53(j)(2), which provides:
Within the time prescribed for perfecting the appeal an appellant unable to pay for the statement of facts may, by motion and affidavit, move the trial court to have the statement of facts furnished without charge. After hearing the motion, if the court finds the appellant is unable to pay for or give security for the statement of facts, the court shall order the court reporter to furnish the statement of facts, and when the court certifies that the statement of facts has been furnished to the appellant, the court reporter shall be paid from the general funds of the county, by the county in which the offense was committed the sum set by the trial judge. [Emphasis added].
While a pauper's affidavit was at one time sufficient to trigger a free transcript, this is no longer the case. Rosales, 748 S.W.2d at 455; Tafarroji v. State, 818 S.W.2d 921, 923 (Tex.App.--Houston [14th Dist.] 1991, no pet.). By virtue of Rule 53(j)(2), the burden of filing an affidavit of indigency and sustaining the allegations in his affidavit at the subsequent hearing is upon the appellant. Rosales, 748 S.W.2d at 453; Tafarroji, 818 S.W.2d at 923; Skidmore, 808 S.W.2d at 710. A defendant who claims indigency and requests a statement of facts without charge must exercise due diligence in asserting his indigency, including the timely filing of the affidavit. Snoke, 780 S.W.2d at 212-13; Abdnor, 712 S.W.2d at 140-41; Skidmore, 808 S.W.2d at 710. Thus, the determination of indigency is vested in the sound discretion of the trial court, rather than providing an absolute right to a free transcript. Rosales, 748 S.W.2d at 455; Tafarroji, 818 S.W.2d at 923. The determination of indigence is to be made at the time of appeal, and not at the time of trial. Barber v. State, 542 S.W.2d 412, 413 (Tex.Crim.App.1976); Skidmore, 808 S.W.2d at 710.
Appellant contends that his statements contained within the paragraph entitled "Indigency of Defendant" constitute an unsworn declaration within the meaning of TEX.CIV.PRAC. & REM.CODE ANN. §§ 132.001-132.003 (Vernon Supp.1994), and thus, he satisfied the affidavit requirement of Rule 53(j)(2). Chapter 132 of the Texas Civil Practice and Remedies Code provides for unsworn declarations by inmates in lieu of "written sworn declaration, verification, certification, oath, or affidavit." TEX.CIV.PRAC. & REM.CODE ANN. § 132.001(a) (Vernon Supp.1994); Carson v. Gomez, 841 S.W.2d 491, 492 (Tex.App.--Houston [1st Dist.] 1992, no pet.). The unsworn declaration must be in writing and "subscribed 3 by the person making the declaration as true under penalty of perjury." TEX.CIV.PRAC. & REM.CODE ANN. § 132.002(1, 2) (Vernon Supp.1994); see Carson, 841 S.W.2d at 492. Section 132.003 sets out the form of declaration that must be substantially followed. 4 Carson, 841 S.W.2d at 492.
Several courts have determined whether particular declarations substantially complied with Sections 132.002 and 132.003. In Ex parte Johnson, 811 S.W.2d 93, 97 (Tex.Crim.App.1991), the Court of Criminal Appeals held that a certificate of verification in which the applicant declared that "all allegations and statements in the foregoing Writ of Habeas Corpus are true and correct to the best of my knowledge" substantially complied with Sections 132.002 and 132.003. Similarly, in Carson v. Gomez, 841 S.W.2d 491, the Court of Appeals held that the signed declaration, "I swear the foregoing statements are true and correct", was in substantial compliance with Section 132.003. Carson, 841 S.W.2d at 492. In the case relied upon by Appellant, Owens v. State, 763 S.W.2d 489, 492 (Tex.App.--Dallas 1988, pet. ref'd), the defendant attached the following "affidavit" to his motion for new trial: "I, the undersigned, being presently incarcerated in a penal institution, do hereby declare under oath and penalty of perjury that the facts, statements and allegations set forth in the foregoing Motion for New Trial are within my personal knowledge and are true and correct." Owens, 763 S.W.2d at 490. The Dallas Court of Appeals held that the declaration substantially complied with the requirements of Sections 132.001-003. Carson, 841 S.W.2d at 490. The same result...
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