MOTION GRANTED; Opinion FiledJanuary 14,2013

InThe 

## QI:ourtofsgppeals jf 

# iftb Jlistrittof'atexas atJlallas No. 05-12-00224-CR JORGESUAREZ,Appellant 

## v. THESTATEOFTEXAS,Appellee OnAppeaHrom the CountY**Crimin~il** CourtNo. 11 Dallas County,Texas

- Trial CourtCauseNo. MA10-72305-N 

### OPINION Before ChiefJustice Wright and Justices Bridges, and Myers Opinionby ChiefJustice Wright Before the Court is appellant's motion to review the trial court's determination ofnonindigency, to find him indigent for purposes ofappeal, to supplementthe appellate record, and to permit supplementation of his brief. We conclude the trial court abused its discretion in determining appellant was no longerindigent and thus we grantthe motion. BACKGROUND Appellant was charged with the offense ofassault involving family violence. The Dallas County Public Defender's Office was appointed to represent him. Before trial, appellant posted

- 1-a cash bond in the amount of $1,500 to secure pretrial release. After appellant allegedly threatened the complainant in the hall outside the courtroom, the State filed a motion to hold the bond insufficient. The trial court held a hearing and increased appellant's bond to $5,000. Appellant paid cash for both bonds. Before trial, appellant's appointed counsel filed a motion for continuance representing appellant was "prepared and wishes to hire an attorney ofhis choice
...." During the pretrial hearing on the day oftrial, appellant's counsel argued for a continuance citing appellant's desire to retain counsel and a need for a record ofthe bond hearing proceedings as grounds. Counsel represented appellant "has the funds available today to hire counsel of his choice if he was allowed a continuance in this matter." The trial court expressed concern over appellant using

. . appointed counsel when he had the ability to retain his own attorney but denied the. continuance·
.

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### - . as untimely. At appellant's triai,'held on December 16,

### ,2.0'11, ajury convicted

### ~ppellant ofthe ' · offense. The trial court assessed punishment at 180 days confinement in the countyjail and a fine of$500, probated for twenty-four months. Appellant filed a pauper's oath as part ofhis notice ofappeal swearinghe was a "penniless, destitute and indigentperson, too poorto employ counsel" and unable to give security for the reporter's record. The trial court then reappointed the publicdefenderto represent appellant on appeal. While the appeal was pending, appellant and another man approached the trial court and asked how the man could get the $5,000 put up for appellant's bond. According to the trial court, the man stated he was appellant's employee. According to appellant, the man worked as a maintenance man in an apartment moving company owned by appellant's son where appellant
was also employed. The trial court decided to conduct a review ofappellant's indigency. At a hearing held

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on April 4, 2012, the trial court revie':Ved two affidavits ofindigency 1 appellant had filed and heard appellant's testimony. Although the trial court and appellant discussed what the "maintenance man" had said to the trial court, the maintenance man was not called to testify. The State did not put on evidence and asked appellant only to affirm thathe lived alone. Appellant testified he earned approximately $1,000 per month as an employee of his son's apartment moving business. He described his expenses as $300 for rent, $60 for gasoline when he borrows a car, $300 for food, $200 for his telephone, and $280 per month for his leg monitor. Appellant also testified he had given his thirteen-year-old daughter $40 perweek "fora couple ofweeks." When the trial courtquestioned him about discrepancies betweenhis financial affidavits and his testimony, appellant admitted he had made a mistake in calculating his cell

- ' ' phone**e~pense** andit-was $50.per month-ratherthan $200._-Appellant also indicated his affidavit

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### ..**~** neededupdatingbecailse itinCluded-$45 forinsuranceona carhe had sold amonth ago. Appellant testified he balances his budget by getting a weekly loan from a friend and money from his mother. Appellant explained his son sold a truck to raise the $5,000 for his bond? Appellant denied the account ofthe "maintenance man" being the source ofthe bond money. Appellant testified his son had put up the money for the bond and the maintenance man had brought itbecausehis sonwas in NewYork. Under questioning from the trial court, appellant admitted he had been trying to get the bond money back to the maintenance man. Appellant explained why he was trying to get the money returned to the maintenance man as follows: "But you know what happen-I tell you he

1 Althoughthe trial countookjudicial notice oftheaffidavits, they are not partofthe record onappeaL
2 Ahhou!1.h the trial coun's questions assumed the original bond was $3,500 and the increased bond amount was $1,500, the State's motion to hold the-bond insufficient and the trial coun's order granting the motion show the original bond was $1,500 and the trial coun increased the bond by$3,500. -3-got the money back because last time Ihad to pay him more than the $1500 he give me. Likehe give $200, $500, that's why I want to give him that money belong him now." Appellant affirmed to the trial court that both he and the maintenance man agreed the bond money belonged to the maintenance man. Appellant further agreed with the trial court that during the hearing when appellant's bond was set at $3,500, appellant had pulled the money from his pocket to pay the bond, the maintenance man was not present at that time, and appellant had not been aware before the hearing that he would be taken into custody ifhe did not pay a bond. Appellant explained he had the money because he had sold a truck for his son one or two days before for $3,500 and he had been carrying around the cash. Appellant admitted that when his bondwas increased, he had pulled the $1,500 in cash from his pocketbuthe claimed·his sonhad givenhimthe money.

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### .**~** . . Appellant's counsel relayed.to the 

### trial·court that she had sought estimates from four appellate lawyers for taking appellant's case and she received two quotes of$7,500 and $8,000 to representappellant on appeal. Thetrial court suggested appellantcould acquirethe servicesof counsel for less money forthe appeal ofatwo-day misdemeanortrial. In announcing its ruling, the trial court stated itbelieved appellant had additional sources ofincome. When counsel objected to theruling, the trial courtresponded: I know you believe his testimony. I don't. I mean I understand that's yourclient and youbelievehis testimony. I don'tbelievethattestimony. There have been two prior people, not only the other person [the maintenance man] that said he worked for him, there was a hearing before you were involved where somebody sworn under oath and took the stand and said she worked for him, not with him. She worked for him and it was his company. That washersworn testimony in a hearing in this court. So I'm not only considering just what you're telling me, I'm also considering all the evidence from this casethathelps me determine whether ornot he's indigent. That'swhat she said.
-4-The other gentleman [the maintenance man) came in, wasn't a sworn hearing. Hejust approached to ask how he could get the bond money back and said he worked for him. So there's been inconsistent testimony in comparison to what he testified to today. I know you believe his testimony. I don't believe his testimony is credible. The trial court concluded appellantwas not indigent and this appeal followed. STANDARDOFREVIEW AND APPLICABLELAW A defendant may be indigent ifthe defendant is "notfinancially able to employ counsel"
or is unable to "payorgive security for the appellate record." See TEX: CODE CRIM. PROC. ANN. art. 1.051(b) (West Supp. 2012); Tex. R. App. P. 20.2; McFatridge v. State, 309 S.W.3d 1, 5 (Tex. Crim. App. 2010). Whether a defendant is indigent for appointment of counsel and obtaining a free record are separate issues and may be resolved differently but· involve. consideration of the same factors.**~.-See i\4cFa~~iqge.,** **"":~09** _S.W.3d _at 5---Q. Indigence

-. determinations are made at the time the issue arises and on a case-by-case basis. !d. at 5. Factors relevant to consider are the defendant's income, sources of income, assets, property, outstanding obligations, necessary expenses, number and age ofdependents, and spousal income available to the defendant. See TEX. CODE CRIM. PROC. ANN. art. 26.04(m) (West Supp. 2012); McFatridge, 309 S.W.3d at 6. Whether a defendant has posted or is capable ofposting bail is not a consideration except to the extent it reflects the defendant's financial circumstances as measured by the other factors. See TEX. CODE CRIM. PROC. ANN. art. 26.04(m); Whitehead v. State, 130 S.W.3d 866, 875 (Tex. Crim. App. 2004). In making its indigence determination, the trial court should employ a two-step process. First, the defendant must make aprima facie showing ofindigence. McFatridge, 309 S.W.3d at 6. Ifthe defendant makes aprima facie showing ofindigence, the burden then shifts to the State

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-to show the defendant is not indigent. /d. Unless there is some basis in the record to find the defendant's 

### primafacie showing of indigence is inaccurate or untrue, the trial court should accept it as sufficient and find the defendant indigent. !d. Once the defendant has been determined**indigen~,** he is presumed to remain indigent for the duration ofthe case unless there is a material change in his financial circumstances. 

### See TEX. CODE CRIM. PROC
..ANN. art. 26.04(p). The trial court's indigence determinations are reviewed on appeal for an abuse of discretion. 

### See Newman v. State, 937 S.W.2d 1, 3 (Tex. Crim. App. 1996). If a defendant establishes a

### primafacie showing ofindigence, an appellate court will uphold a determination that the defendant is not indigent only if the record contains evidence supporting the determination
. . 

### :McFatridge, 309 S.W.3d at 6. Thetrial court is not completelyfree-.to disbelieve

-}-_:**-~** the defendant's assertions concerning his financihl.•status; bufitmay disbelieve the defendant's assertions "if there is a reasonable, articulable basis for doing so, either because there is conflicting evidence orbecause the evidence submitted is in some manner suspectordetermined bythe courtto be inadequate." 

### Whitehead, 130 S.W.3d at 876. DISCUSSION Appellant contends the trial court erred in conducting the indigency hearing because it lackedjurisdiction, no evidence showed a change in his financial circumstances to overcome the presumption ofindigence, and the trial court used improper standards to determine he was not indigent. Turning first to the matter ofthe trial court'sjurisdiction, appellant contends the trial court lackedjurisdiction to re-examine his status four months after appellant filed his notice of appeal when nothing in the record reflects this Court vested the trial court with any fresh

- 6-authority to review his indigency status. The State responds the trial court still had subject matterjurisdictionoverthe case because the appellate record had not yet been filed. The court ofcriminal appeals has held that the filing ofa notice ofappeal divests the trial court ofgeneraljurisdiction over a case. See Ramirez v. State, 104 S.W.3d 549, 550 (Tex. Crim. App. 2003). The rules ofappellate procedure, however, provide that except as provided by law
or the appellate rules of procedure, once the appellate record has been filed, all further proceedings in the trial court are suspended until the appellate court issues its mandate. See Tex. R. App. P. 25.2(g). Even in Ramirez, the court opined the trial court retainedjurisdiction after the notice ofappeal was filed in order to decide whether to appoint counseL See Ramirez, 1 04 S.W.3d at 550. In·thiscase, theclerk'srecord has beenfiled butthe reporter'srecord has not yet been filed,
.The code ofcriminal procedure.permitsreconsideration ofthe issue ofa defendant's:.
·,**--~·,.,::** .,. indigency ifthere is a material change in financial··circlirilstances.>See·TEX. CODE CRlM. 

### PRoc. ANN. art. 26.04(p). Because the record was not yet filed and the law permits reconsideration of indigency, we conclude the trial court hadjurisdiction to conduct its inquiry. See Tex. R. App. P. 25.2(g); State v. Moore, 225 S.W.3d 556, 568 (Tex. Crim. App. 2007) (holding the trial court's subjectmatterjurisdictionextendsuntil the appellaterecord is filed); see also Whitehead, 130 S.W.3d at 874 n. 34 (noting but declining to resolve the potential conflictbetween the court of criminal appeal's opinions and rule 25.2(g) over "the exact moment the trial court loses jurisdiction."). Appellant next contends there was no evidence showing a material change in his financial circumstances that wouldjustify re-examination ofhis indigency status. Appellant contends the trial court had found him to be a pauper at the time he filed his appeal and the State did not object to his pauper's oath. Accordingly, appellant contends, there is a legal presumption of

- 7-.··-. continued indigence. No motion was filed to challenge that status, and no evidence was presentedthat would call into doubtthepresumption ofindigence. The State contends there is some basis in the record to support the trial court's ruling because (1) appellant initially testified his telephone expense was $200 but revised that under questioning to $50 per month; (2) appellant offered a shifting story regarding whether his son or the maintenance man paid his bail; (3) appellant admitted having $3,500 cash in his pocket to pay his bail even though he had not known he was being taken into custody; (4) appellant produced an additional $1,500 in cash from his pocket when his bail was increased; and (5) appellant's counsel sought a continuance by representing to the trial court that appellant had sufficient·fundsto retain trial counsel. Appellant concedes his effort to. obtain a continuance to retain**trial~counsel** could have triggered_questions regarding his,indigency but he notes that.the·
. ·:·**,_..-..,·.-:~,** .,:1 trial courtdid notfind him notto beindigentand no**evide~ce**

# was presented·showingthe amount offunds available, the sourceofthe funds, orwhetherthe funds were still available in April 2012 to retain appellate counsel. We agreewith appellant. After the trial court accepted appellant's bail money, and heard trial counsel's representation that appellant had funds available to retain trial counsel, it nevertheless found appellant indigent and appointed the public defender to represent him on appeal. Thus, the record reflects the trial court determined appellant to be indigent and appellant is presumed indigent barring a material change in his financial circumstances. See TEX. CoDE CRIM. PROC. ANN. art. 26.04(p). Nothino in the evidence before the trial court indicated a change in appellant's financial t> circumstances. Appellant testified his expenses exceed his income and he is forced to borrow money to make up the difference. The State did not file a motion to re-examine whether

- 8-appellant was indigent; it presented no evidence at the hearing to refute appellant's presumed indigency; and it asked appellant only one question to confirm thathe lived alone. Thus, the trial court's determination that appellant was not indigent rests entirely upon whether the trial court's colloquy with appellant created "a reasonable, articulable basis" for the trial court to conclude appellant's evidenceofindigence was suspector inadequate. Whitehead, 130 S.W.3d at 876. While a discrepancy was detected in the amount of appellant's telephone bill, the discrepancy in the telephone expense is immaterial in light of evidence showing appellant's necessary expenses would not permit him to retain counsel or pay for an appellate record. Although appellant's production of substantial amounts ofcash twice in connection with the bond hearings and his explanations ofhow he came to have the cash in his pocket.might raise suspicion, no evidencewas·,presented to support an alternate view.of:how·appellant acquired,the'

._,.**~-** ---;. <·o__ ,ccish;"-orhaving spentthe money on his bond, whetherappellant could-raise·**additional~sUIIlS**from the same source. Without evidence bearing on the source ofthe bond money or another factor set out in article 26.04(m), the fact that appellant posted bail is not a proper consideration. See TEX. CODE CRIM. 

### PRoc. ANN. art. 26.04(m); Whitehead, 130 S.W.3d at 875. Likewise, no evidence was presented to address whether the funds appellant's trial counsel represented were available on December 15, 2011 to retain trial counsel were still available to hire appellate counsel onApril 4, 2012. Appellant's indigency is determined on the date the issue arises, and not at some priororfuture date. See Whitehead, 130 S.W.3d at 874. Because appellant established aprimafacie showing ofindigency and was entitled to a presumption ofcontinued indigence, we may uphold the trial court'sdetermination that appellant is no longer indigent only if the record contains evidence supporting the determination. McFatridge, 309 S.W.3d at 6. In this case, the record does not contain such evidence. The State -9-did not present any evidence to support the trial court's suspicion that appellant might have another source of income. Therefore, we conclude the trial court did not have a reasonable, articulable basis to conclude appellant's evidence of indigence was suspect or inadequate. Whitehead, 130 S.W.3d at 876. Accordingly, we grant appellant's motion and reverse the trial court's ruling that appellant is notindigent.

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