Stephens v. State, 48458

• Decision Date: 15 May 1974
• Docket Number: No. 48458,48458
• Citation: 509 S.W.2d 363
• Parties: L. C. STEPHENS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 363

509 S.W.2d 363

L. C. STEPHENS, Appellant, v. The STATE of Texas, Appellee.

No. 48458.

Court of Criminal Appeals of Texas.

May 15, 1974.

C. C. Divine, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Andy Tobias, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for the offense of sale of heroin, with the punishment being assessed at fifty (50) years.

The only issue presented in this appeal is the question of whether or not the appellant is indigent for the purposes of this appeal, and is therefore entitled to the use of an in forma pauperis appellate record in order to perfect a meaningful appeal. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Ex parte Campbell, 494 S.W.2d 842 (Tex.Cr.App.1973); Art. 40.09, Sec. 5, Vernon's Ann.C.C.P.

At the conclusion of the formal sentencing hearing conducted on July 16, 1973, appellant's retained trial counsel gave due and timely notice of appeal. Thereafter, appellant filed a sworn pauper's oath requesting a free transcript in question and answer form for appellate purposes, and a hearing was held on this motion on August 1, 1973. At the conclusion of this hearing, the trial court denied relief and refused to order that a free statement of facts be prepared for the use of counsel on appeal. This court must now determine from the record produced at the hearing on the question of indigency whether the trial judge's denial was error.

At the hearing, appellant testified that he had eight children living at home, with three other 'grown' children living elsewhere; that he was married, that his wife did not work, and that she had been on welfare since appellant had been sentenced in this case; that he had no money with which to purchase a record, nor did he have bonds or any other securities which could be easily liquidated.

Appellant further testified that he did own a 1968 Ford station wagon, but related that this car was 'not running' and was just 'sitting up in the yard.' The only other property that appellant owned was his homestead, in which his wife and eight children lived, and a seven-year-old 'ordinary horse' for which appellant had paid One Hundred Thirty-Five Dollars ($135.00) seven years before. Appellant testified that he didn't know how much the horse would sell for, but that he would be willing to sell it because the animal would have been no 'benefit to him now.'

The State presented no evidence in rebuttal of petitioner's testimony. We further note that the record reflects that appellant, being assessed a fifty (50) year prison term, had been in continuous custody of the sheriff since at least June 20 1973. There is some indication that the record on appeal would have cost between Two Hundred Fifty and Three Hundred Dollars ($250.00 and $300.00) for reproduction.

The State initially contends that appellant is not indigent for the reason that the record shows that appellant, at some time prior to the date of this hearing, had bought a Cadillac automobile for his nineteen-year-old daughter. This record does not reflect when this vehicle was purchased, the model of the vehicle, the location of the vehicle, or its possible worth. Since the marketability of the 'ordinary horse' owned by the appellant is not reflected in this record, we can hardly say that the ownership of this particular animal classified appellant as a non-indigent.

The State alternatively suggests that since the record does not contain a timely written designation requesting the statement of facts, appellant has in some manner waived his right to request an in forma pauperis appellate record. We note that Art. 40.09(2), V.A.C.C.P. requires a written designation to be filed 'within sixty days after notice of appeal is given,' and that in this case, the trial court conducted its hearing on the request for a statement of facts well within the sixty-day time limit. See Sowell v. State, 505 S.W.2d 877 (Tex.Cr.App.1974).

This Court has had, on recent occasions, opportunity to review whether or not a trial court's denial of a free record on appeal constitutes a constitutional abuse of discretion. See Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Barrow v. State, 502 S.W.2d 162 (Tex.Cr.App.1973); Butler v. State, 506 S.W.2d 902 (Tex.Cr.App., delivered March 13, 1974). A review of these cases makes it abundantly clear that the final decision as to the status of 'indigency' will require a case-by-case analysis of each individual situation.

While there appear to be no firm standards set out in our statutes, see Art. 40.09(...