           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD–1494–08



                       MELANIE D. McFATRIDGE, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TENTH COURT OF APPEALS
                        NAVARRO COUNTY

              Meyers, J., filed a concurring opinion.

                              CONCURRING OPINION

       A trial judge’s determination of indigency is a question of law. The two-step

process articulated in Snoke v. State, 780 S.W.2d 210 (Tex. Crim. App. 1989), first

requires a defendant to make a prima facie showing of indigency. If the defendant

satisfies this burden, the “trial court should accept the defendant’s evidence absent some

reason in the record for not doing so.” Whitehead v. State, 130 S.W.3d 866, 875 (Tex.

Crim. App. 2004). Therefore, the trial judge does not have the discretion to completely
                                                                McFatridge concurrence–Page 2

ignore uncontroverted evidence of a defendant’s financial situation.

       The second step allows the State to present evidence showing that the defendant is

not indigent. While this part of the determination may allow the trial judge some

discretion to believe certain documents or witnesses and disregard others, at the end of

the day, the trial judge is either right or wrong about whether a defendant is indigent. In

Whitehead we stated, “The trial court is not completely free to disbelieve the defendant’s

allegations concerning his own financial status, but the trial court may disbelieve an

allegation if there is a reasonable, articulable basis for doing so, either because there is

conflicting evidence or because the evidence submitted is in some manner suspect or

determined by the court to be inadequate.” Id. at 876.

       The court of appeals ultimately held that the trial court did not abuse its discretion.

In truth, the court of appeals conducted a de novo review, considering the evidence

presented to the trial court by the defendant and the State and determining that the trial

court was correct. I agree with that determination. I disagree, however, with the

majority’s failure to express that an indigency determination is either right or wrong and

is not in some zone of disagreement. Therefore, I concur.

                                                           Meyers, J.




Filed: January 27, 2010

Publish
