                         NUMBER 13-13-00071-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

VICTOR HAMILTON,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 361st District Court
                         of Brazos County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Perkes and Longoria
               Memorandum Opinion by Justice Perkes
      Appellant Victor Hamilton appeals the trial court’s holding that he is not indigent

for the purposes of court appointed appellate representation and a free trial record. No

briefs were submitted for review on appeal. In the interest of justice, we review the

indigency issue solely on the record. See TEX. R. APP. P. 38.8(d). We affirm.
                         I.      FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was convicted of sexual assault of a child and sentenced to seventy-five

years in prison.1 Appellant appealed his conviction pro se, but did not file an appellate

brief or request the trial record. 2          On abatement, the trial court held a hearing to

determine whether appellant is indigent and entitled to court-appointed representation

and to a free trial record. Appellant testified that he is indigent because he does not have

the “15 to $25,000” necessary to hire a lawyer to handle his conviction on appeal and that

he is unable to earn money due to his incarceration.

       The State offered evidence showing that over the last several years, appellant

received lump sum payments from a structured settlement totaling $321,405.07, and that

appellants wife is the payee of a structured personal injury settlement totaling over four

million dollars.3 The State also provided evidence that appellant’s wife owns a parcel of

property with a market value of approximately $36,000. Appellant stated that he spent

the money from his settlement on cars, houses, and land. Appellant did not elaborate

on the present state of his finances, but argued that everything he purchased was sold at

some point and that he had “lost everything.”              Appellant further stated that he was

separated from his wife and that she was unwilling to assist him financially.




       1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
       2   See generally TEX. R. APP. P. 38.8(b).

       3  The trial court acknowledged this money may not be community property. See TEX. FAM. CODE
ANN. § 3.001(a)(3) (West, Westlaw through 2013 3d C.S.).
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                                II.          STANDARD OF REVIEW

       In reviewing these types of cases, we employ a heightened abuse of discretion

standard. See Whitehead v. State, 130 S.W.3d 866, 875–76 (Tex. Crim. App.

2004). Under this standard, the trial court is not equipped with unfettered discretion to

simply disbelieve a defendant’s evidence of indigence. Id. at 875. The trial court may,

however, require a defendant to verify an indigence claim with supporting

documentation. Id. The trial court is not completely free to disbelieve the defendant’s

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

statements if there is a reasonable, articulable basis for doing do, 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. Thus, although the standard is

less deferential than simple abuse of discretion, deference is still part of the standard. Id.

                                      III.    APPLICABLE LAW

       A defendant is indigent for purposes of the appointment of appellate counsel if he

is “not financially able to employ counsel.” McFatridge v. State, 309 S.W.3d 1, 5 (Tex.

Crim. App. 2010) (quoting TEX. CODE CRIM. PROC. ANN. art. 1.051(b)). To qualify as

indigent and receive a copy of the record without charge, a defendant must be unable to

“pay or give security for the appellate record.” Id. See TEX. R. APP. P. 20.2. Determining

indigency for purposes of appointing counsel and obtaining a free record are discrete

inquiries.   McFatridge, 309 S.W.3d at 5.             Relevant to both inquiries concerning

appointed counsel and a free records are the following factors: the defendant's income,

source of income, assets, property owned, outstanding obligations, necessary expenses,

the number and ages of dependents, spousal income available to the defendant, and
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ability to post bail to the extent that ability relates to the other factors. Whitehead, 130

S.W.3d at 878.

       Courts use a two-step process for each purpose of indigency: (1) the defendant

must make a prima facie showing of indigence; and (2) when the prima facie showing is

made, the burden shifts to the State to show that the defendant is not in fact indigent.

Whitehead, 130 S.W.3d at 874 (citing Snoke v. State, 780 S.W.2d 210, 213 (Tex. Crim.

App. 1989) (en banc)). A reviewing court should uphold a trial court’s ruling denying

indigent status only if it finds that the trial court, having utilized this two-step process,

“reasonably” believed the defendant was not indigent. McFatridge, 309 S.W.3d at 6.

                                    IV.     DISCUSSION

A.     Indigence for the purpose of court appointed counsel

       At his hearing, appellant presented no evidence specifying his financial status

other than generalized testimonial statements regarding his lack of financial resources.

Additionally, appellant was either unable or unwilling to give specific testimony regarding

the outcome of his alleged property and asset sales. Further, appellant did not state

what attorney, if any, provided him with estimates for the cost of legal representation.

       The State produced evidence to show that appellant was married at the time of the

indigency hearing and that his wife had significant financial resources either in her name

or in her possession. Importantly, the court found that appellant had an $18,000 interest

in a parcel of community property. Appellant neither contradicted his wife’s ownership

of the property nor disputed its value.     Because the record supports a finding that

appellant is not indigent, we overrule appellant’s first issue. See Whitehead, 130 S.W.3d

at 878.
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B.     Indigence for the purpose of a free record

       Assuming that the trial record costs more than $18,000, there could be a question

regarding whether appellant is able to pay for it. The record, however, contains no

evidence regarding the cost of the trial record, whether it must be paid in advance, or

even the length of the trial court proceedings. Without at least some ballpark figure for

the cost of the record, we are unable to conclude that the trial court abused its discretion.

Therefore, we overrule appellant’s second issue. See id. at 879.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment of indigence. In this same cause number,

appellant also sought review of the merits of his conviction of sexual assault of a child.

See TEX. PENAL CODE ANN. § 22.011(a)(2) (West, Westlaw through 2013 3d. C.S.).            By

this opinion, we have resolved the issue of indigence. Appellant’s appeal of his

conviction is ordered SEVERED, and will be docketed in this Court under cause number

13-14-00444-CR, and will proceed in due course. In that cause, appellant has thirty days

from the date of this opinion to pay or make satisfactory arrangements to pay for the

clerk’s and reporter’s records for the appeal on the merits.


                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
7th day of August, 2014.




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