TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00177-CR
Kenneth Tuck, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. 9020859, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Kenneth Tuck guilty of theft over $20,000. See Tex. Pen.
Code Ann. § 31.03(a), (e)(5) (West Supp. 2005). The court assessed a five-year prison sentence, but
suspended imposition of that sentence and placed appellant on community supervision. The sole
issue on appeal is whether the trial court erred by denying appellant’s request for a free appellate
record.1 Finding no abuse of discretion, we affirm the conviction.
A two-step process is used to determine if a defendant is indigent for the purpose of
obtaining a free record on appeal: (1) the defendant has the initial burden to make a prima facie
showing of indigence, and (2) if that showing is made, the burden shifts to the State to show that the
defendant is in fact not indigent. Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004).
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The clerk’s record was prepared and filed. The only remaining issue is appellant’s entitlement
to a free reporter’s record.
Although the indigence determination is committed to the trial court’s discretion, our review of the
court’s ruling is not as deferential as it is in other contexts. Id. at 875-76. The trial court is not free
simply to disbelieve the defendant’s sworn allegations regarding his financial status. Id. at 875. The
court may disbelieve an allegation only if there is a reasonable, articulable basis for doing so, either
because there is conflicting evidence or because the evidence submitted is in some manner suspect
or inadequate. Id. at 876.
Appellant, who is represented by retained counsel, filed a motion for a free record
supported by an affidavit stating that he has “no money, property or assets of any kind sufficient to
enable me to pay for or give security in order to pay for the Reporter’s Record.” See Tex. R. App.
P. 20.2. At the hearing on appellant’s motion, he testified that the statements in his affidavit were
true and correct.2 During cross-examination by the State, appellant testified that he had been unable
to obtain full-time work, was employed part-time at Sears, and earned approximately $450 during
the previous month. He testified that he owns no stocks, bonds, furniture, or anything else of value.
He stated that he pays $950 per month in rent and makes a monthly payment of $540 on a 1997
Suburban. He explained that he had been borrowing money from his brother. Counsel agreed that
the reporter’s record will cost approximately $2100 not including the exhibits, which the prosecutor
estimated would cost an additional $700.
At the conclusion of the hearing, the court directed appellant to file an indigency
information form together with verifying documents such as bank statements, payroll stubs, and tax
returns. Appellant subsequently filed an information form showing a monthly income of $1200 and
2
The hearing was before the Honorable Brenda Kennedy.
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claiming $1790 in necessary monthly expenses, including the rent and vehicle payments mentioned
previously. He also tendered a copy of his 2003 income tax return which showed a total income for
that year of $20,503, and a single Sears pay stub showing that he was paid $567 in wages and
commissions during the first two weeks of April 2004.
Appellant asserts that the trial court abused its discretion because he made a prima
facie showing of indigence that was unrefuted by the State. We agree with the State, however, that
the court could have reasonably believed that some of appellant’s claimed expenses—specifically
the $950 rent and $540 car payment—were unnecessarily high. See Whitehead, 130 S.W.3d at 879.
The court could reasonably expect a person claiming a monthly income of $1200 to find less
expensive housing and means of transportation, and to use the money saved to pay the court reporter.
Considering the record as a whole, we conclude that the district court’s finding that appellant did not
make a prima facie showing of indigence was not an abuse of its discretion.
Because no other error is raised, the judgment of conviction is affirmed.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed: November 17, 2005
Do Not Publish
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