Fowler, James Christopher v. State ( 2004 )

Affirmed and Memorandum Opinion filed July 29, 2004

Affirmed and Memorandum Opinion filed July 29, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01097-CR

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JAMES CHRISTOPHER FOWLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 905,919

M E M O R A N D U M   O P I N I O N

James Christopher Fowler appeals the trial court=s denial of a free record on appeal and from his conviction for manslaughter. Because we find no abuse of discretion by the trial court in denying a free reporter=s record on appeal, we affirm that determination.  We further affirm the conviction.

Indigence

Appellant filed a pro se pauper=s oath on appeal on November 25, 2002.  The trial court appointed counsel for appellant but denied the request for a free record on appeal.  This Court was notified on December 11, 2002, that appellant had not made arrangements to pay for the reporter=s record.  On December 12, 2002, this Court issued an order, abating the case, and remanding to the trial court for a hearing to determine whether appellant was indigent and wanted to continue with the appeal.  A hearing record was filed on December 27, 2002, in which the trial court found that appellant had the ability to pay for the record.  No reporter=s record was filed.  On January 9, 2003, this Court issued an order, directing appellant=s counsel to file a brief without the benefit of the reporter=s record. 

On March 6, 2003, appellant=s counsel filed in the trial court a motion for a free reporter=s record.  This motion was denied on March 13, 2003.  On March 24, 2003, appellant filed a notice of appeal from the trial court=s denial of a free reporter=s record.  A motion for extension of time to file the brief was filed in this Court and granted until April 4, 2003.  No brief was filed, and on May 1, 2003, this Court issued an order, directing appellant=s counsel to file a brief on or before June 2, 2003, or show cause would issue. On May 29, 2002, appellant=s counsel filed a motion to abate, which this Court denied.  On June 20, 2003, appellant=s counsel filed a second motion for extension, which this Court granted until July 18, 2003. 

On July 18, 2003, appellant=s counsel filed a brief, challenging the trial court=s refusal to furnish appellant a free record on appeal.  The State has filed a reply brief.

The determination of indigency rests in the sound discretion of the trial court.  Rosales v. State, 748 S.W.2d 451, 455 (Tex. Crim. App. 1987). Thus, we review the trial court=s determination for abuse of discretion.  Id.  An indigency determination is made on a case-by-case basis.  Id.  Although there are no rigid standards, a defendant must sustain the allegations of indigence at the hearing.  Snoke v. State, 780 S.W.2d 210, 212-13 (Tex. Crim. App. 1989).  AThe court must consider only the defendant=s personal financial conditions, not those of his parents, other relatives, friends or employers.@ Id. at 213.  Once a prima facie showing of indigency is made, the defendant has satisfied his burden unless evidence is offered which refuses his claim.  Id.

The record contains testimony presented at three hearings on indigence.  At the first hearing on November 4, 2002, appellant appeared without an attorney and stated that he planned to hire a lawyer.  Appellant stated that he was trying to find a job, but that his wife worked for the Harris County probate court system.  Appellant testified that his wife earned approximately $800 every two weeks.  Appellant further testified that he anticipated $5000 income tax refund which he could apply towards court costs.  The trial court stated that, if appellant paid for the record, an attorney would be appointed.  The trial court then appointed counsel for appellant.

Another hearing was held on December 20, 2002.  Appellant again testified that he was trying to find a job, but that he still anticipated receiving income tax funds.  Appellant again testified that his wife worked for the probate court.  The trial judge found that appellant was responsible for paying for the record.

A third hearing was held on March 13, 2003.  Appellant stated that his wife still worked for the probate court system, earning approximately $800 every two weeks.  Appellant admitted that he had set aside $4,500 for the record, but the court reporter stated the record would cost $7,000.  Because the record cost more than appellant had accumulated, appellant used the funds for other expenses.  Appellant testified that he owned no real estate, stocks or bonds, and had no checking account.  Appellant admitted that his wife has a checking account, but appellant estimated it contained about $55.  Appellant testified he owned a 1993 Buick LeSabre automobile.  Appellant testified he had a degree in secondary education from Prairie View University, but had been out of work for approximately one year. Appellant testified he is attending school.  Appellant testified that he and his wife have two children.  The court denied appellant=s request for a free record.

We find no abuse of discretion by the trial court in denying appellant=s claim of indigency.  The evidence shows that appellant=s wife is employed.  No testimony or other evidence was presented to show that a portion of his wife=s income could not be applied toward the cost of the record.  Furthermore, appellant obtained a large sum of money that could have been applied toward the cost of the record, but appellant used these funds for other expenses.  Appellant also testified he owned a car.  The evidence concerning appellant=s financial condition did not satisfy appellant=s burden of establishing a prima facie showing of indigency.  Accordingly, we hold the trial court did not abuse its discretion and we affirm the trial court=s determination.

Conviction for Manslaughter

After a jury trial, appellant was convicted of the offense of manslaughter.  On October 8, 2002, the trial court sentenced appellant to confinement for 5 years in the Institutional Division of the Texas Department of Criminal Justice. 

Because we gave appellant notice on January 9, 2003, that the case would be submitted without a reporter=s record under Rule 37.3(c), appellant=s appointed counsel filed a separate Anders brief in which he concludes the appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the partial record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate partial record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  On March 4, 2004, we ordered the Harris County District Clerk to provide appellant with a copy of the record.  We received notification that appellant received the record on March 11, 2004.  As of this date, no pro se response has been filed.

We have carefully reviewed the partial record and counsel=s brief and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the partial record.  A discussion of the brief would add nothing to the jurisprudence of the state.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed July 29, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).