MOTION GRANTED; Opinion Filed January 14,2013




                                                 In The
                                        QI:ourt of sgppeals
                              jfiftb Jl istritt of 'atexas at Jlallas

                                          No. 05-12-00224-CR

                                     JORGE SUAREZ, Appellant

                                                   v.
                                 THE STATE OF TEXAS, Appellee

                         On AppeaHrom the CountY Crimin~il Court No. 11
                                      Dallas County, Texas -
                              Trial Court Cause No. MA10-72305-N

                                              OPINION
                      Before Chief Justice Wright and Justices Bridges, and Myers
                                    Opinion by Chief Justice Wright

       Before the Court is appellant's motion to review the trial court's determination of non-

indigency, to find him indigent for purposes of appeal, to supplement the appellate record, and to

permit supplementation of his brief.     We conclude the trial court abused its discretion in

determining appellant was no longer indigent and thus we grant the motion.

                                             BACKGROUND

       Appellant was charged with the offense of assault involving family violence. The Dallas

County Public Defender's Office was appointed to represent him. Before trial, appellant posted


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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 of his choice .... " During the pretrial

hearing on the day of trial, appellant's counsel argued for a continuance citing appellant's desire

to retain counsel and a need for a record of the 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
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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, a jury convicted ~ppellant of the ' ·

offense. The trial court assessed punishment at 180 days confinement in the county jail and a

fine of $500, probated for twenty-four months. Appellant filed a pauper's oath as part of his

notice of appeal swearing he was a "penniless, destitute and indigent person, too poor to employ

counsel" and unable to give security for the reporter's record. The trial court then reappointed

the public defender to 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 of appellant's indigency. At a hearing held
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              on April 4, 2012, the trial court revie':Ved two affidavits of indigency 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 that he 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 per week "for a

              couple of weeks." When the trial court questioned him about discrepancies between his financial

              affidavits and his testimony, appellant admitted he had made a mistake in calculating his cell
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              phone e~pense and it-was $50. per month- rather than $200._ -Appellant also indicated his affidavit
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              needed updating becailse it inCluded- $45 for insurance on a car he had sold a month 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 of the "maintenance man" being the source of the bond

              money. Appellant testified his son had put up the money for the bond and the maintenance man

              had brought it because his son was in New York.

                            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
                                Although the trial coun took judicial notice of the affidavits, they are not part of the record on appeaL

                         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.
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got the money back because last time I had to pay him more than the $1500 he give me. Like he

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 if he 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

bond was increased, he had pulled the $1 ,500 in cash from his pocket but he claimed· his son had

given him the money.
             .                                 :   .   ~   .   .
       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 represent appellant on appeal. The trial court suggested appellant could acquire the services of

counsel for less money for the appeal of a two-day misdemeanor trial.

       In announcing its ruling, the trial court stated it believed appellant had additional sources

of income. When counsel objected to the ruling, the trial court responded:

               I know you believe his testimony. I don't. I mean I understand that's
       your client and you believe his testimony. I don't believe that testimony.
               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
       was her sworn 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 case that helps me determine whether or not
       he's indigent. That's what she said.


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               The other gentleman [the maintenance man) came in,            wasn't a sworn
       hearing. He just 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 appellant was not indigent and this appeal followed.

                            STANDARD OF REVIEW AND APPLICABLE LAW

       A defendant may be indigent if the defendant is "not financially able to employ counsel"

or is unable to "pay or give 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 of dependents, 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 of posting 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 a prima facie showing of indigence. McFatridge, 309 S.W.3d at

6. If the defendant makes a prima facie showing of indigence, 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 prima facie 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 of the 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 prima facie showing of indigence, 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. The trial court is not completely free-.to disbelieve
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              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 or because the evidence submitted is in some manner suspect or determined

              by the court to be inadequate." Whitehead, 130 S.W.3d at 876.

                                                               DISCUSSION

                     Appellant contends the trial court erred in conducting the indigency hearing because it

              lacked jurisdiction, no evidence showed a change in his financial circumstances to overcome the

              presumption of indigence, and the trial court used improper standards to determine he was not

              indigent. Turning first to the matter of the trial court's jurisdiction, appellant contends the trial

              court lacked jurisdiction 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



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                       authority to review his indigency status. The State responds the trial court still had subject

                       matter jurisdiction over the case because the appellate record had not yet been filed.

                               The court of criminal appeals has held that the filing of a notice of appeal divests the trial

                       court of general jurisdiction over a case. See Ramirez v. State, 104 S. W.3d 549, 550 (Tex. Crim.

                       App. 2003). The rules of appellate 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 retained jurisdiction after

                       the notice of appeal was filed in order to decide whether to appoint counseL See Ramirez, 104

                       S.W.3d at 550. In·this case, the clerk's record has been filed but the reporter's record has not yet

                       been filed, . The code of criminal procedure. permits reconsideration of the issue of a defendant's:.

·,   --~·,.,::   .,.   indigency if there 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 had jurisdiction 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 subject matter jurisdiction extends until the appellate record is filed); see also Whitehead,

                       130 S.W.3d at 874 n. 34 (noting but declining to resolve the potential conflict between 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 would justify re-examination of his 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
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                            continued indigence.         No motion was filed to challenge that status, and no evidence was

                           presented that would call into doubt the presumption of indigence.

                                      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 ·funds to 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 court did not find him not to be indigent and no evide~ce   was presented· showing the amount
                            of funds available, the source of the funds, or whether the funds were still available in April 2012

                            to retain appellate counsel. We agree with 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).

                                      Nothinot> in the evidence before the trial court indicated a change in appellant's financial

                            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
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                  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 that he 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 evidence of indigence was suspect or 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 of cash twice in connection with the

                  bond hearings and his explanations of how he came to have the cash in his pocket .might raise

                  suspicion, no evidence was·,presented to support an alternate view .of:how ·appellant acquired ,the'

._,.   ~-   ---;. <·o __,ccish;"-or having spent the money on his bond, whether appellant could-raise· additional~sUIIlS from

                  the same source. Without evidence bearing on the source of the 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 on April 4, 2012. Appellant's indigency is determined on the

                  date the issue arises, and not at some prior or future date. See Whitehead, 130 S.W.3d at 874.

                           Because appellant established a prima facie showing of indigency and was entitled to a

                  presumption of continued indigence, we may uphold the trial court's determination 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
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                     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 not indigent.




. -   . ,"'k ' •..    3:::_··-                     .:   .   -~:   -· ··-


      ' - ·_.,o-   ··Do No(Publisli·-
                     . TEX. R. APP. P. 47


                      120224F.UOS




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