                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                        No. 07-18-00140-CR


                        VINCENT RAY JACKSON, JR., APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 32nd District Court
                                     Nolan County, Texas
                  Trial Court No. 12317, Honorable Glen Harrison, Presiding

                                        October 16, 2018

                    CONCURRING and DISSENTING OPINION
                      Before QUINN, C.J., and PIRTLE and PARKER, JJ.

       I join with the majority’s opinion save for its disposition of the attorney’s fees issue.

       Appellant requested appointed counsel before trial and on appeal. The trial court

found that appellant did “not meet the indigency standards of this court” in both instances,

but, in both instances, it appointed counsel for appellant in the “interest of justice.” So too

did it find, in both instances, that:

       The Defendant is ORDERED to immediately report to the Office of Court
       Collections and make payments of at least $50.00 per month toward their court
       appointed attorney fee; total payments not to exceed $500.00.
       If the trial court decides that one requesting appointed counsel has the financial

resources enabling him to offset in whole or in part the costs of the legal services provided

him, that court is required to order him to pay, as court costs, the amount that it finds the

defendant is able to pay. See TEX. CODE CRIM. PROC ANN. art. 26.05(g) (West Supp.

2018); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). To this I add the

definition of “indigent” provided us by our Court of Criminal Appeals. In Whitehead v.

State, 130 S.W.3d 866 (Tex. Crim. App. 2004), we were told that a defendant is indigent

if “he is financially ‘without the means to employ counsel’ of his choosing.” Id. at 878

(quoting TEX. CODE CRIM. PROC ANN. art. 26.04(o)).           These statutes and definition,

coupled with the deferential standard of review we must accord the trial court’s factual

determinations, see Whitehead, 130 S.W.3d at 876 (stating that “[a]lthough the standard

of review for a trial court’s determination of indigence is not as deferential as the standard

in Ross, deference is still a part of the standard”), led me to the following conclusion. The

trial court implicitly found that 1) appellant had some financial means or resources with

which to employ counsel; 2) those means, however, were not enough to pay for the entire

cost of counsel; and 3) the financial resources he did have enabled him to pay at least

$50 per month, not to exceed $500. See Charles v. State, 146 S.W.3d 204, 208 (Tex.

Crim. App. 2004) (stating that, when deciding if a trial court abused its discretion, we

presume that all reasonable factual findings that could have been made against the losing

party were made). Thus, the trial court was obligated by article 26.05(g) and Mayer to

order payment of the amount appellant could pay.

       In short, I disagree with the majority’s conclusion that a finding of “‘not indigent’ is

not the same as a finding that one has the present ability to pay, in whole or in part, the



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sum assessed.” Finding that a defendant is not indigent while requiring the defendant to

pay a particular amount to reimburse the cost of an appointed counsel is comparable to

finding that the defendant had the financial resources to pay the sum assessed. So, the

trial court was obligated to require such payment.

       As for the suggestion that no evidence of record demonstrates that appellant’s

“present financial resources were sufficient to meet that standard,” I cannot disagree. The

current appellate record before us has no such evidence. Yet, that does not mean the

trial court had no evidence before it to support the findings of non-indigency and an ability

to pay some of the cost. One may say that this sounds like legal “hair-splitting” and it may

well be. But, is that not our job (rhetorical question)? And does resolution of disputes not

often call for splitting hairs (again, rhetorical)?

       The burden lies on an appellant to provide the reviewing court with an appellate

record sufficient to illustrate his entitlement to reversal. Word v. State, 206 S.W.3d 646,

651–52 (Tex. Crim. App. 2006) (“It is usually the appealing party’s burden to present a

record showing properly preserved, reversible error.”). Aspects of the record before the

trial court involving issues about which he does not complain need not be included in the

appellate record. Indeed, including unnecessary items in the record may result, in some

situations, in the party receiving a bill for including them. See TEX. R. APP. P. 34.5(b)(3)

(stating that in civil cases, if a party requesting more items than necessary to be included

in the clerk’s record or any supplement, an appellate court may require that party to pay

the cost for including the unnecessary items). Here, appellant did not complain on appeal

about the trial court’s assessment of attorney’s fees as part of the cost or its finding on

non-indigency.     So, he had no reason to request that the appellate record include



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evidence tendered in support of his application for appointed counsel and apparent

contention below that he lacked the means to hire an attorney. Yet, such evidence most

likely exists, and it was most likely considered by the trial court.

       As a prerequisite to obtaining appointed counsel, appellant was required to

complete a questionnaire, under oath, detailing his financial resources and undergo

examination by a judge or magistrate when requesting appointed counsel. TEX. CODE

CRIM. PROC. ANN. art. 26.04(n) (West Supp. 2018) (so requiring); Whitehead, 130 S.W.3d

at 873 (same). He was also obligated to execute, under oath, a statement that he was

without means to employ counsel. TEX. CODE CRIM. PROC. ANN. art. 26.04(o); Whitehead,

130 S.W.3d at 873. The information contained in these mandatory items along with the

data acquired through questioning would provide the trial court the fodder upon which to

decide whether he was indigent. See TEX. CODE CRIM. PROC. ANN. art. 26.04(m) (stating

that, when determining indigence, the court may consider the defendant’s income, source

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

number and ages of dependents, and spousal income that is available to the defendant);

Whitehead, 130 S.W.3d at 875 (stating the same).

       Given these statutory prerequisites, I cannot but conclude that it was much more

likely than not that the trial court had evidence before it when deciding whether appellant

was indigent. That evidence would determine the accuracy of the trial court’s findings.

More importantly, it would be that evidence which we must consider before concluding

that the trial court’s findings lacked evidentiary support.      As said in Whitehead, an

appellate court’s review of the record itself is generally limited to the evidence before the

trial court “at the time of the trial court’s ruling.” Whitehead, 130 S.W.3d at 872



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(emphasis added).     This is nothing short of mandating that our assessment of the

accuracy of the trial court’s factual finding regarding indigence be focused on the

evidence before the court when it found appellant to be non-indigent and able to pay up

to $500. Yet, such evidence is not part of the current record. Nor was supplementation

of the current record sought to provide it or determine whether it actually existed. See

TEX. R. APP. P. 34.4(c) (stating that relevant items omitted from the clerk’s record may be

included in a supplemental clerk’s record); TEX. R. APP. P. 34.6(d) (stating the same but

with regard to the reporter’s record). Due to these circumstances, I cannot join in the

majority’s conclusion that the trial court’s findings had no evidentiary support.

       For the reasons stated above, I would simply reduce the amount of attorney’s fees

assessed to reflect the trial court’s actual determination. I would modify the judgment to

reflect that appellant had an obligation to pay attorney’s fees of $500.




                                                                Brian Quinn
                                                                Chief Justice



Publish.




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