Kathy M. Atkinson v. Eustace Independent School District ( 2006 )

NO. 07-06-0286-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

AUGUST 31, 2006 ______________________________

KATHY M. ATKINSON, APPELLANT

V.

EUSTACE INDEPENDENT SCHOOL DISTRICT, APPELLEE _________________________________

FROM THE 173^RD DISTRICT COURT OF HENDERSON COUNTY;

NO. 16,970-A; HONORABLE DAN MOORE, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Kathy M. Atkinson appeals the trial court's judgment against her arising out of a suit brought by appellee Eustace Independent School District for delinquent property taxes. We will dismiss the appeal.

This appeal was transferred to us from the Twelfth Court of Appeals. Before it was transferred, the Twelfth Court sent appellant a letter asking that she remit the $125 filing fee by July 24, 2006. On our receipt of the file, this court, by letter dated July 26, 2006, also notified appellant that the required filing fee had not been paid. Our letter also advised appellant that if the fee was not paid by August 7, 2006, her appeal was subject to dismissal.

Appellant responded to the letters by filing "pauper's affidavits" that referred to Rules of Civil Procedure "749a and/or 749b." ⁽¹⁾ In the affidavits, appellant swore that "[she is] not able to pay all of or part of the costs of appeal" of the judgment "because of [her] financial condition." She also filed a document entitled "Financial Statement," which describes her limited income and her medical expenses, ⁽²⁾

and states that the costs "would be a financial hardship to [appellant]."

On August 7, 2006, this court sent another letter to appellant concerning the filing fee, referring her to the rule governing indigent appeals in civil cases. Tex. R. App. P. 20.1. We advised appellant, "[a]lthough you have filed information with regard to your claim of indigence, the information provided to date is inadequate pursuant to Rule 20.1(b) of the Texas Rules of Appellate Procedure. Unless the filing fee in the amount of $125.00 is paid or you have filed an affidavit containing all the information required to demonstrate indigence under Rule 20.1(b) by Thursday, August 17, 2006, this appeal will be subject to dismissal."

In response to our August 7 letter, appellant has forwarded (1) copies of delinquent tax receipts with a note indicating she paid something in excess of $800 in delinquent taxes in late June of this year, (2) a copy of a notice of appraised value from the Henderson County Appraisal District, and (3) a copy of a letter from the Social Security Administration regarding appellant's monthly benefit and health plan premiums. This information does not establish appellant's indigence for purposes of the rules that govern our consideration of appeals.

Rule of Appellate Procedure 20.1(a) provides that a party who cannot pay the costs in an appellate court may proceed without advance payment of costs if the party files an affidavit of indigence in compliance with the rule; the claim is not contested or, if so, the contest is not sustained; and the party timely files a notice of appeal. ⁽³⁾ Under Rule 20.1(b), the prescribed contents of an affidavit of indigence include, among other information, complete information about the party's income and expenses, her real and personal property assets, and her ability to obtain a loan for court costs. In re J.W., 52 S.W.3d 730,

731-32 (Tex. 2001). The information appellant has provided in response to this court's letters does not address all the topics listed in Rule 20.1(b). ⁽⁴⁾

Appellant has thus failed to comply with the requirements of our August 7 letter giving her a reasonable time to correct the deficiency in her affidavit concerning indigency. Tex. R. App. P. 44.3; In re J.W., 52 S.W.3d at 733. She also has failed to comply with the filing fee requirement. Tex. R. App. P. 5. Accordingly, the required notice to all parties having been given, we dismiss the appeal. Tex. R. App. P. 42.3(c).

James T. Campbell

Justice

1. Those rules deal with appeals from justice court in forcible entry and detainer actions. Appellant's appeal is from a judgment of the 173^rd District Court of Henderson County in favor of Eustace Independent School District for delinquent property taxes.

2. The Financial Statement states that appellant has "only one income which is Social Security income of $935.00 per month and [her] medical expenses exceed [her] income. [She] get[s] some assistance with medical expense but the help [she receives] does not meet all of [her] medical expenses."

3. The three requirements are listed in the conjunctive in Rule 20.1(a). Rule 20.1(c) also provides that affidavits of indigence are to be filed in the trial court with or before the notice of appeal, and provides a procedure for contests to the affidavits. We have no indication of a contest to appellant's affidavit. One of appellant's pauper's affidavits bears a file stamp of the Henderson County District Clerk, but neither of the affidavits was filed with or before her notice of appeal, or within 15 days thereafter. Appellant submitted no motion for extension of time to file an affidavit of indigency. Tex. R. App. P. 20.1(c)(1), (3). We nonetheless evaluate appellant's responses to the court's letters in light of the requirements of Rule 20.1(a) and (b). See Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898, 899-900 (Tex. 2006) (addressing a similar circumstance).

4. Moreover, as noted, the information appellant has provided indicates she paid over $800 to the taxing authorities in late June of this year, casting doubt on her claim of indigency.

d fails to hint at any reason to question appellant's understanding here. Appellant's own testimony revealed he is an articulate high school graduate who had been accepted into a Texas state university, possessed no physical impairment on which he could rely to avoid military service and "did real, real well" on a nuclear physics examination given by a Navy recruiter. This evidence indicates appellant was capable of perceiving and understanding the description of the range of punishment stated by the prosecutor and his counsel.

Having reviewed the entire record, we find nothing that shows he was unaware of the consequences of his plea, or that he was misled or harmed. Aguirre-Mata II, 125 S.W.3d at 476-77. We conclude the trial court's error of failing to show on the record it complied with article 26.13 by admonishing appellant on the range of punishment did not affect a substantial right and was therefore harmless. Id.; Tex. R. App. P. 44.2(b).

With respect to appellant's due process argument, we note that unlike the record in Boykin, 395 U.S. at 240, the record is not silent concerning appellant's reasons for pleading guilty before the jury but sheds considerable light on that subject. In addition to his comments to the trial judge concerning the bifurcated procedure he was requesting, as he began voir dire, appellant's trial counsel told the panel that "there are several reasons for [his client's plea of guilty]. The truth, that is the main one. And that's what we are here to lay out before you. We think if we are asking you to do something seriously we better start from the start being straight. The other reason is we don't want to waste your time. We know it's valuable and we appreciate your time. So, with that out of the way . . . ." Counsel then continued, devoting almost all the rest of his voir dire to inquiries concerning sentencing, clearly attempting to prepare the prospective jurors to recommend community supervision for his client.

Later, during appellant's testimony on punishment, he and his counsel had this exchange, concerning his actions toward police after his arrest:

• During that time [after the arrest], did you cooperate with the police?

• Yes, sir.

• You told them exactly what you had done?

• Yes, sir.

• Admitted every part of the offense?

• Yes, sir.

• Just like you have done today?

• Yes, sir.

Appellant later responded, "Yes, sir," to his counsel's question "You're pleading guilty because that was true?" Also, from the witness stand, appellant apologized to the victim, and, in a statement occupying some three-quarters of a page of the record, addressed his counsel's question asking why the jury should "take a chance on you," through community supervision. Appellant also introduced as punishment evidence his handwritten statement written in jail. Through these instances in the record, and others, appellant presented himself to the jury as a thoughtful young man who acknowledged a serious mistake borne of poor judgment but was a good candidate for a "second chance." ⁽⁵⁾ Further, by virtue of the procedure utilized in appellant's trial, his plea of guilty before the jury did not involve waiver of all the constitutional rights a criminal defendant typically waives by pleading guilty. See Aguirre-Mata II, 125 S.W.3d at 475 n.6 (constitutional rights waived by a guilty plea are privilege against compulsory self-incrimination, and rights to counsel, trial by jury ⁽⁶⁾ and confrontation of accusers, citing Boykin, 395 U.S. at 243). Here, appellant was represented by counsel throughout, was adjudged guilty by the jury and cross-examined the State's witnesses.

Under the circumstances presented, we find the trial court's failure to make a record clearly reflecting admonishment of appellant on the range of punishment did not equate to a denial of due process. Boykin, 395 U.S. at 240. His first and second issues are overruled.

Appellant's third and fourth issues complain of the trial court's failure to admonish him of the immigration consequences of conviction. Courts have held such an error is harmless when the record shows that the defendant is a citizen of the United States. Anderson, 182 S.W.3d at 919; Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). Appellant's description of the record as "completely silent" as to his citizenship is inaccurate. It contains an affidavit of financial status signed by appellant which recites his place of birth as Lubbock, Texas. ⁽⁷⁾ Because the record affirmatively shows he is a citizen, we overrule appellant's third and fourth issues.

Appellant's final two issues complain of the trial court's failure to define deadly weapon in the jury charge on guilt or innocence. ⁽⁸⁾ The definitions section of the charge omitted the statutory definition of deadly weapon, and the application paragraph can be read to define a knife as a deadly weapon. Appellant concedes the complaints were not preserved for review by any objection to the trial court and reversal is required only if they caused harm so egregious as to deprive appellant of a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). The harm must be actual, not just theoretical. Id. at 174; Cormier v. State, 955 S.W.2d 161, 164 (Tex.App.-Austin 1997, no pet.). To evaluate the actual harm caused by the charge error, we review the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information shown by the record. Almanza, 686 S.W.2d at 171.

Appellant cites us to Blanson v. State, 107 S.W.3d 103 (Tex.App.-Texarkana 2003, no pet.), in which the court found egregious harm from a charge that contained the instruction, "[a] knife is a deadly weapon." Id. at 105. Here, though, we cannot ignore appellant's plea of guilty before the jury. His plea established the facts alleged in the indictment, which included the allegation appellant used or exhibited a deadly weapon. See Fairfield, 610 S.W.2d at 776-77; Tex. Pen. Code Ann. § 29.03(a) (Vernon 2003) (defining aggravated robbery). Too, unlike in Blanson, in which the nature of the unopened knife as a deadly weapon was a "central issue," id. at 106, the characterization of the knife as a deadly weapon was not a contested issue at appellant's trial. Further, the knife was before the jury. The record shows it was a folding or pocket knife, about four inches long when closed and with a locking, curved serrated blade about two-and-three-quarters inches long. The investigating sheriff's deputy testified without objection that the knife was capable of causing serious bodily injury or death. See Tex. Pen. Code Ann. § 1.07(17) (Vernon Supp. 2006) (defining deadly weapon). We do not agree the record reflects egregious actual harm flowing from the errors in the jury charge. ⁽⁹⁾ We overrule appellant's fifth and sixth issues.

Finding no reversible error in the judgment of the trial court, we affirm the judgment.

James T. Campbell

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.) and Don H. Reavis, Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Asking the court to adopt his requested procedure, appellant's trial counsel told the court, "I have done this in the past, we pled guilty, the jury has gone back, quickly, found a guilty verdict and then we go directly into the punishment phase. And I think from a defendant's point of view, that allows a jury to have the satisfaction of finding him guilty before they decide what they are going to do with him."

3. Neither does the reporter's record suggest any part of the proceeding was not transcribed.

4. Under the procedure employed, it might be said that the trial court did not "accept" appellant's plea of guilty. The record shows that after receiving the plea, the court immediately began hearing the State's evidence on guilt/innocence. The court did not instruct the jury to find appellant guilty, but the court's comments to the jury make clear that the court expected the jury to render a guilty verdict. Under such circumstances, the proper procedure is that reflected in Fairfield v. State, 610 S.W.2d 771, 776-77 (Tex.Crim.App. 1981), and other cases, by which the defendant is admonished outside the presence of the jury.

5. Appellant's strategy met with some success. Although they did not recommend community supervision, the jury sentenced appellant to the shortest allowable term of incarceration.

6. Nothing in the record shows a waiver of jury trial. See Tex. Code Crim. Proc. Ann. art. 1.13 and 1.15 (Vernon 2005) (stating manner of waiver of jury trial).

7. See U.S. Const. amend. XIV, § 1; 8 U.S.C. § 1433(a) (each declaring persons born in the United States as citizens).

8. We note that appellant's issues complaining of the jury charge on guilt/innocence treat his conviction as one based on the jury verdict, a view inconsistent with his first four issues treating it as based on his guilty plea. We nonetheless address the issues.

9. Our conclusion appellant suffered no egregious harm from the charge error also means his admission of guilt during punishment testimony bars his complaint, under DeGarmo v. State, 691 S.W.2d 657 (Tex.Crim.App. 1985). Kelley v. State, 22 S.W.3d 628, 631 (Tex.App.--Fort Worth 2000, pet. ref'd) (admission of guilt at punishment waived charge error).