### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00393- CR

Mer ril Leroy Je ssop, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F SCH LEICH ER COUNTY , 51S T JUDICI AL DISTRICT

NO. 995 , H ONO RAB LE B ARB ARA L. WALTH ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Merr il L eroy J essop filed a pro se notice of appea l following his conviction for sex ual assault of a child. He also filed pro se m otions for a fre e record and appointed counsel for the a ppeal. A hearing on the m otions was held at which appellant was repr esente d by his trial counsel, who was reta ined for the trial and who has informed the Court that he is now repr esenting appellant on a pro bono basis. The trial court found that appellant is not indige nt and overr uled the motions. After counsel advised the Court that appellant wished to challeng e the trial court’s finding that he is not indige nt, we order ed the prepa ration of a partial rec ord, including the repor ter’s rec ord from the indige ncy hear ing. Counsel for both parties have submitt ed briefs addre ssing the propriety of the trial court’s ruling

. We aff irm the court’s order overr uling the motions for appointed counsel and a f ree rec ord.STANDARD OF REVIEW A defe ndant is indige nt for the purpose of appointing appellate counsel if he is “not financ ially able to employ counsel.” Tex. Code Crim. Proc. Ann. art. 1.051(b) (West Supp. 2010). For the appellate rec ord to be furnished without char g e, a defe ndant must be unable to “pay or g ive

secur ity for the appellate rec ord.” Tex. R. App. P. 20.2. These are discrete inquiries, but the same fac tors apply to both. McFatridge v. State , 309 S.W .3d 1, 5-6 (Tex. Crim. App. 2010). A court may consider the defe ndant’s income, source of income, assets, proper ty owned, outstanding obliga tions,

nece ssary expenses, the number and ag es of depende nts, spousal income available to the defe ndant, and the ability to post bail insofar as that ability ref lects the defe ndant’s financ ial circ umstances as

measure d by the other fac tors. Id

. at 6; W hitehead v. State , 130 S.W .3d 866, 878 (Tex. Crim. App. 2004). The ability of a defe ndant to borrow money is something that may be taken into a ccount in considering how the defe ndant’s assets and proper ty rela te to th e ability to pay , but a defe ndant should not be require d to borrow money that ca n n ev er b e re paid without depriving him of the

nece ssities of life. W

hitehead , 130 S.W .3d at 8 7 8

. T h e ex pense involved in hiring counsel and pay ing f or the a ppellate r ecor d is also a valid consider ation. Id

. The indige ncy deter

mination is made on a case -by -ca se basis as of the time the issue is raised and not as of some prior or future time. Id

. at 874. A two -s t ep p ro ce s s i s u s ed: (1) the defe ndant must make a prima fac ie showing of indige nce, and (2) when the prima fac ie showing is made, the burden shifts to the State to show that the defe ndant is n o t i n fac t indige nt. Id

. I n deter mining whether the defe ndant has made a prima fac ie showing of indige nce, a trial court does not have the discretion to s i m p l y d i sbelieve the defe ndant’s evidence of indige nce. Id

. at 875. A

2trial court may disb el ieve a defe ndant’s alleg ation of indige nce only if there is a rea sonable,

articula ble basis for doing so, either beca use there is conflicting evidenc e or be cause the evidenc e submitt ed is in some manner suspect or ina dequate

. Id . at 876. I f a defe ndant made a prima fac ie showing of indige nce, a trial court’s deter mination that the defe n d an t i s not indige nt may be upheld on appea l only if the rec ord contains evidenc e supporting this deter

mination. McFatridge , 309 S.W .3d at 6. A revie wing court may uphold a trial court’s ruling deny ing indige nt status only if it finds that the trial court, having utiliz ed the two-step proce ss, rea sonably

believed tha t the defe ndant was not indig ent. Id

.

EVIDENCE Appellant is a member of the F undamentalist Church of Jesus Christ of L atter- Day Saints (F L DS). Appellant tes tified at the hear ing that he moved to the YFZ (Ye arning For Z ion) Ranch in Schleicher County in 2004, and that he lived there until his conviction in this cause . I n an aff idavit that appea

rs in the rec ord, appellant states that he is marrie d and that his wife continues to live at the YF Z Ranch. The re is no evide nce tha t appellant has c hildren.

I n his af fi d avit of indige nce, appellant stated that he has no income. He listed no assets except for household furnishing s valued at $500 and clothing valued at $200. I n his testimony , appellant also acknow ledg ed having title to a 2003 Yukon Suburban. Appellant testified that this vehicle was purcha sed with a loan from a Utah bank. Appellant did not testify to the value of the vehicle o r t h e s i z e o f the loan, althoug h he did state that the amount owed exceede d the

v eh i cl e’s value. Appellant also testified that he had tools worth approximately $20 0 an d approximately

$100 in a saving s acc ount. 3I n his aff idavi t , ap pellant claimed a $650 per month expense for “auto pay ment/insurance .” Appellant testified, howeve r, that he made no insurance pay ments. The only other listed expense was a $200 per month cre dit car d pay ment. Appellant testified that he and the other re sidents at the YF Z Ranch pa y nothing f or their housing or utiliti es. They also pay nothing for f ood, clothing, a

nd other supplies, which a re pr ovided throug h the ra nch storehouse

. Appellant testified that he manag ed the ranc h dairy

. He also testified that he worke d for Texan Supply and Service s delivering sand, g rave l, and concr ete to building sites. Texas Rang er Br o o k s L ong testified t hat Tex an S upply was one of several businesses based at the YFZ Ra n ch

. The State introduced a document from the secr etar y of state showing that Texas Supply and Service s is a limit ed liability company manag ed by a Richard J essop. Comptroller’s rec ords also introduced by th e State ref

lect that from J anuar

y 2009 throug h Marc h 2010, Texan Supply had total sales of $3,911,907. Appellant testified that the work he did for Texan Supply was for the benef it of the YFZ Ranch, but he sa id that he did not know what happe ned to the income the business g ener ated.

Appellant testified that he rec eived a “lunch allowanc e” from Texan Supply , but that h e otherwise rec eived no wag e or salary for his work. I nstead, he would “[o] cca sionally ” rece i v e what is ref

err ed to as a “per sonal n ee d s d istribution” from the bishop, Fr edric k Merr il J essop. 1 During cross-e x amination by the prosec utor, appellant stated that he was unable to rec all the siz e of these distributions and could not estimate the total amount he had rec eived over the y ear s, althoug h he did confirm that the distributions had continued until the date of his conviction. Although presse d

The rec ord does not re fl ect if or how appellant is rela ted to Richard J essop and 1 Fr edric k Merr il J essop. 4by

the prosec utor, appe llant would not or could not explain the purpose of the se pay ments or how they came to be made, other than to say , “I could put a reque st f or a need and one way or the other

. . . we would be taken car e of.” During redire ct examination, appellant testified that the timing of 2

The following excerpt re flec ts the nature of appellant’ s cross-e x amination on this topi c: 2 Q. And then if there wer e specia l things that y ou or y our family neede d, there would be something called a

persona l needs distribution, corre ct? A. Somewhat, y es. Q. And eac h and ever

y month the bishop wo u l d t ak e fu n d s that wer e held at the ranc h and would do persona l needs disbursements to y ou and others living out at the ranc h, corr ect? A. I don’t know how he arr ang ed it, but — Q. You g ot the money , though, r ight? A. I did not ge t money
. Q. Mr. J essop, would y ou rec eive f rom time to tim e an a

mount of money from the bishop out at the YFZ Ranch? A. What do y ou mean, by — for a persona l need? Q. Yes, sir. A. Well, I could put a re quest for a need a nd one wa

y or the other

— Q. And doesn’ t — A. — we w ould be taken c are of. Q. Right. And by taken car e of, y ou would ask for a cer tain amount of money , and that amount of money

would either be g iven to y ou or it wouldn’t, rig ht? A. I don’t know that I quite understand exactly what — how y ou’re try ing to put it.

5these distributions varie d, and he said that they wer e usually for $50 to $200. He estimated that he

had neve r re ceive d more than $3000 in a y ear . FB I Special Ag ent J ohnathan Br oadwa y testified for the State. Br oadwa y , a cer tified public acc ountant, stated that he had analy zed financ ial reco rd s s ei z ed at the YFZ Ranch in April 2008 pursuant to a fede ral sear ch war rant. These rec ords, some of which wer e introduced in evidenc e at the hear ing, cover ed the y ear s 2005, 2006, and 2007. Br oadwa y testified that the rec ords

Q. I ’m — I ’ll try to make it as s i m p le as I can. Every month y ou could g o to the bishop and say : I need, for example, $400 to take car e of some specia l needs for my family , corr ect? A. I would say

y es. Q. And the way that re q u es t wo uld be g rante d is y ou put in y our reque st and y ou know the re quest is gr anted, be cause y ou g et the money back, r ight? A. Not alwa

y s.

. . . Q. And t ell the C ourt how m uch y ou’ve rece ived i n terms of these personal needs reque sts from the bishop at the YF Z Ranch. A. You wa

nt me to — say

that ag ain. Q. Give us a

roug h estimate of how muc h money total have y ou rec eived f rom the bishop based on these persona l needs re quests. A. I could not g ive an a ccur ate a mount. Q. Talking about thousands of dollars? A. That’s — I

honestly can’ t give an ac cura te estimation.

6showed that the YFZ Ranch opera ted on a co m m u n al basis, with the ear nings of the various individ u al s and busi nesses pooled, and the living ex penses of the communi ty members paid from these pooled funds. Wit h respe ct to vehicles, Br oadwa y testified that “althoug h they wer e titled in many of the individual’s names, the actua l note pay ments, car insurance pay

ments, that ty

pe of thing,

wer e ac tually

paid for by

the enter prise.” The doc uments studied by Br oadwa y included the r ecor ds of the bishop’s per sonal needs pay men t s to the residents of the YFZ Ranch. Br oadwa y testified that during the y ear s for which he had rec ords, the bishop had made $1,151,881 in persona l needs distributions , which wer e

over and above the costs for housing, food, clothing, and other nece ssities paid for by the ranc h. The

rec ords ref

lect that in 2005, app e lla

nt rec eived six distributions totaling $18,700. Appellant rec eived

a persona l needs distribution, usually $3500, during eac h month of 2006, for a total of $41,300. He

rec eived three distributions totaling $12,900 in 2007. There is no evidenc e as to what appellant did with this m oney .

Appellant testified that he w a s u n able to borrow money . He acknow ledg ed, howeve r, borrowing somewher e betwee n $3000 and $5000 from Texan Supply in 2009. There is no evidenc e

as to how or whether this loan was repaid, althoug h it was not listed as a liability in appellant’ s aff idavit of indige ncy .

Ap p el l an t t est ified t hat he did not know how his trial attorney s had been paid. He

s ai d t h at he had discussed the matter with the bishop, and that the bishop had told him, “W e’ re working on it.” Appellant testified, in response to a question from the court, that he had not a sked the bishop to provide funds for this appea l. We note, howeve r, that at the conclusion of testimony ,

7defe nse counsel told the court, “I believe that I have made that reque st and I believe that the answe r

is no.” There is no evidenc e as to the cost of the appea l, either for attorney ’s fee s or for the rec ord.

DISCUSSIO N Considered alone, appellant’ s direc t testimony tended to establish a pri m a fac ie showing of i n d i g ence . He testified that he had no income, no assets of any signific ance , and no ability to borrow money . But whe n the rec ord as a w hole is considere d, we c onclude that the tr ial court c ould rea sonably

believe tha t appellant’s c laim of indige nce w as not cre dible. The fina ncial re cords introduc ed in evidence show that appellant rece ived $72,900 in persona l needs distributions during the y ear s 2005, 2006, and 2007. Although the question befor e the court was whether appellant was indige nt at t he ti me of t h e 2 0 1 0 hear ing, we believe t hat t his evidenc e was rele vant to that question for at least three rea s o ns. First, the documentar y evidenc e contra dicts appellant’ s testimony that the persona l needs distributions wer e g ener all y fo r $50 to $200, and that he had never rec eived more than $3000 in a single y ear . T h e m agn i t ude of the discrepa ncy calls into question appellant’ s cre dibilit y g ener ally

. Second, appellant testified that he continued to rec eive persona l needs distributions until the date of his conviction. Although the State did not have copies of t he YFZ Ranch’s more recent financial records, the court could rea sonably infer that the distributions appellant rec eived in 2008, 2009, and 2010 wer e simil ar in amount to those distributions appellant previously rec eived. Third, the evidenc e shows that appellant did not

use the persona l needs distributions to fee d, house, or clothe himself and his wife. These expenses,

as well as appellant’ s vehicle expenses, wer e separ ately paid by the YFZ Ranch. Given that all the

nece ssities of daily life wer e provided by the ranc h, and g iven appellant’ s reluc tance to explain the
8amount or purpose of the persona l needs distributions , the trial court could rea sonably d o u b t t h e

cre dibilit y of appellant’ s claim that he had not saved any of the tens of thousands of dollars he had

rec eived in the f

orm of the pe rsonal nee ds distributi ons. T h e co urt had further rea son to doubt the cre dibilit y of appellant’ s aff idavit o f indige nce. I n the attachme nt to his aff idavit, appellant claimed to be pay ing $650 eac h month on a vehicle l o an and insurance

. But appellant testified that he did not make insurance pay ments, and there is other cr edible evide nce tha t appellant did not persona lly make the loa

n pay ments. Appellant’s testim ony that he was unable to borrow money was a lso contradicte d. Appellant himself testified that he had borrowe d as much as $5000 fr om Texan Suppl y during the y ear prec eding the hea

ring

. Appellant did not disclose the use to w hich this money was put, but it clea rly was not use d to pa

y appellant’ s trial counsel. That expense, too, had been paid by the YFZ Ranch or by

the bishop, acc ording to appellant’s testimony

. Finally , appellant offe red no evidenc e as to the cost of the appellate rec ord and whether the rec ord would have to be paid for in advanc e. Absent even an estimate of the cost of the

rec ord, it is difficult for appe llant to arg ue that he is una ble to pay for it. For the rea sons stated, we conclude that the trial court had rea sonable and articula ble bases for disbelieving appellant’ s claim of indige nce and for deter mining that appellant did not make

a prima fac ie showing of prese nt indige nce. We emphasize that our conclusion is not based on any consideration of the financ ial resour ces of the YFZ Ranch as an entity , or on a belief that appellant

can or should be expected to call upon those resour ces to pay the costs o f this appea l. We have considere d appellant’ s rela tionship with the YFZ Ranch and its rela ted enterprises only i nsofar as

9that rela tionship is rele vant to an assessment of appellant’ s testimony reg arding his persona l income,

expenses, and asse ts.

The trial court’s order overr uling appellant’ s motions for a fre e rec ord and appointed counsel is aff

irmed. Subject to extension for g ood cause shown, appellant has thirty day s from the date of this opini on to pa

y or make satisfac tory arr ang ements to pa y the cler k’s and repor

ter’s fee s in this cause. See Tex. R. App. P . 37.3(b), ( c).

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: January

19, 2011 Do Not Publish

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