Opinion
No. 10-04-00270-CR
Opinion Delivered and Filed May 24, 2006. DO NOT PUBLISH.
Appeal fromthe County Court at Law No. 3, Montgomery County, Texas, Trial Court No. 03-185426. Order on defendant's indigency affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Duncan appeals the trial court's Order on Defendant's Indigency, which denied Duncan's request that the trial court furnish for Duncan without charge the appellate record in Duncan's appeal of his conviction for interference with public duties. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 38.15(a), 1993 Tex. Gen. Laws 3586, 3672-73 (amended 2005) (current version at TEX. PENAL CODE ANN. § 38.15(a) (Vernon Supp. 2005)); TEX. R. APP. P. 20.2. We affirm. Duncan presents eight numbered issues, as follows:
1. The Judge that initiated the indigent hearing was (recused), disqualified to act in any capacity whatsoever in my case. Therefore, due process, and the question of his negligence and usurping actions, is now before the appellate court.
2. Order Appointing Attorney filed September 24th, 2003 A.D., clearly reflects my indigent status. Therefore, how could a recused judge lawfully initiate a hearing, which lead to the trial court overturning that status?
3. The alleged assistant district attorney, representing the state, known as Brett Peabody, has not lawfully qualified for the office he holds, and a PETITION FOR REMOVAL, filed in the 221st District Court is pending. Therefore, the question of the validity of the unauthorized, one-page oath of office, filed by Brett Peabody is now before the appellate court.
4. Brett Peabody mislead the court on December 17th, 2004A.D. when he stated (page 4 lines 14 15) that he believed that the district court had dismissed that action. The suit has not been dismissed and is still pending. Therefore, his authority to act, in any lawful capacity, concerning my December 17th, hearing, is pending a judgment in the 221st District Court.
5. Affidavit of Inability to Give Security for Cost was filed in County Court # 3 on Wednesday, November 17th, 2004 A.D.,
6. Affidavit of Fact — this court has prosecuted and convicted me, without completing the court, (without securing my right to competent counsel). Further, after my appeal, recused Judge Mason Martin initiated an indigent hearing in further violation of CCP 30.01 and the Sixth Amendment.
7. Affidavit of Fact — Only ten days prior to the indigent hearing, initiated by "recused" judge Mason Martin, I was determined to be indigent on December 7th, 2004A.D. by Judge Fritz Faulkner, of San Jacinto County Court.
8. Affidavit of Fact — The STATE OF TEXAS has determined on April 5th, 2005A.D., that I qualify for Supplemental Financial Assistance. I am currently receiving treatment for skin cancer at MD Anderson Cancer Center, for one full year, because of my current indigent status.[sic] (Duncan Br. at 6-7). Duncan asks us to take judicial notice of several matters. See TEX. R. EVID. 201(d). In reviewing a trial court's determination of indigence, however, "[a]n appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal. . . . . Moreover, 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 v. State, 130 S.W.3d 866, 872 (Tex.Crim.App. 2004) (internal footnotes omitted). In Duncan's first, second, sixth, and seventh issues, he apparently contends that a judge who set a hearing on Duncan's affidavit was disqualified or recused from Duncan's case. The record does not support Duncan's contentions. That judge did not hold the evidentiary hearing on Duncan's affidavit, and did not sign the order of which Duncan complains. In Duncan's third and fourth issues, he apparently contends that the assistant district attorney who represented the State at the hearing on Duncan's affidavit had filed an insufficient oath of office, that the assistant was thus not legally qualified to hold that office, and that a petition to remove him from office was pending. The record does not support Duncan's contentions. In Duncan's fifth, seventh, and eighth issues, he apparently contends that the trial court erred in denying Duncan's request for the appellate record without charge. "For the purpose of determining entitlement to a free record, a defendant is considered indigent if he 'cannot pay or give security' for the appellate record." Whitehead, 130 S.W.3d at 878 (quoting TEX. R. APP. P. 20.2). The determination of an appellant's indigence is generally in the discretion of the trial court. See id. at 874-86. The Texas Court of Criminal Appeals has
articulated a two-step process for determining whether a defendant is indigent for the purpose of obtaining a free record on appeal: (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.Id. at 874. "[T]he expense in . . . paying for the appellate record is . . . a valid consideration" in that determination. Id. at 878. In order to establish a prima facie case of indigence, the appellant must "introduce before the trial court competent evidence of the cost of the record or that the record would have to be paid for in advance." Id. at 879. "[A]bsent some evidence showing at least a ballpark figure for the cost of the record," the appellate court "cannot conclude that the trial court abuse[s] its discretion" in denying a record. Id. The record here contains no evidence of the cost of the record or of the requirement of prepayment. Duncan's issues also refer to determinations of his indigence by another court and at other times. "The indigency determination is made," however, "as of the time the issue is raised and not as of some prior or future time." Whitehead, 130 S.W.3d at 874 (quoting Gray v. Robinson, 744 S.W.2d 604, 607 (Tex.Crim.App. 1988) (orig. proceeding)). Accordingly, the trial court did not abuse its discretion in determining that Duncan was not indigent. In Duncan's sixth issue, he apparently contends that he did not receive the effective assistance of counsel at trial. We do not consider that issue in this appeal from the trial court's determination of indigence on appeal. We overrule Duncan's issues and affirm the trial court's order. Duncan must request and pay or make arrangements to pay for preparing the appellate record, and notify this Court of the date on which he has done so, within 30 days of the date of this opinion.
We assume without deciding that Duncan adequately briefs his issues. See TEX. R. APP. P. 38.1(h); Jones v. State, 119 S.W.3d 766, 784 (Tex.Crim.App. 2003); Tong v. State, 25 S.W.3d 707, 710 (Tex.Crim.App. 2000).