Gray v. State

OPINION ON APPELLANTS’ PETITIONS FOR DISCRETIONARY REVIEW

MEYERS, Judge.

The trial court convicted appellant Gray of burglary of a building and assessed a sentence of ten years. The trial court convicted appellant Hickerson of burglary of a habitation and assessed a sentence of five years. Both appealed, claiming ineffective assistance of counsel, and each, in his respective notice of appeal, declared his indigency and moved the trial court for a free statement of facts. The trial court, however, did not respond to either of appellants’ motions.

*562The Fifth Court of Appeals affirmed both convictions, concluding that appellants did not exercise due diligence in asserting their indigency and, thus, were not entitled to a free record on appeal. Gray v. State, No. 05-92-01307-CR, 1994 WL 236284 (Tex.App.—Dallas [5th Dist.], 1994); Hickerson v. State, No. 05-92-00423-CR, 1994 WL 263355 (Tex.App.—Dallas [5th Dist.], 1994). We granted discretionary review to decide whether the court of appeals erred in its determinations.

Included in the Texas Rules of Appellate Procedure is a provision by which indigent defendants can obtain a free statement of facts on appeal:

Within the time prescribed for perfecting the appeal an appellant unable to pay for the statement of facts may, by motion and affidavit, move the trial court to have the statement of facts furnished without charge. After hearing the motion, if the court finds the appellant is unable to pay for or give security for the statement of facts, the court shall order the reporter to furnish the statement of facts ... Tex. RApp. P. 53(j)(2).

A similar provision, and the predecessor to rule 53(j)(2), existed in the Code of Criminal Procedure before its repeal in 1986. Tex. CRiM. PROC-Code art. 40.09, § 5. Both construct a framework in which appellants must assert their indigency and in which, even after such a claim, indigency is not presumed, but, rather, determined by the trial court after a hearing. In Abdnor v. State, 712 S.W.2d 136 (Tex.Crim.App.1986), this Court analyzed art. 40.09, § 5 and recognized that an appellant’s compliance with that statute required both that the appellant exercise due diligence in asserting his indigency and that the appellant carry the burden of proof at the hearing to prove the veracity of his indigency claim. As we made unmistakably clear in Abdnor, an appellant who timely filed his indigency affidavit had exercised the requisite “due diligence.” Id. at 142. The necessity for the timely compliance with judicial procedures may seem self-evident. Laden with procedures, our judicial system would operate ineffectively if those employing such procedures were allowed to simply get to them when they wanted. In fact, rule 53(j)(2) specifically addresses this temporal issue by requiring that an appellant desiring a free statement of facts file an indigency affidavit and motion “within the time prescribed for perfecting the appeal.” Thus, we do not need to speak in terms of “due diligence” or “timely filing.” We need only say that appellants seeking the benefit of rule 53(j)(2) must file an indigency affidavit and move the court for a hearing on that assertion in the time set out in the statute and must also, consistent with Abdnor, demonstrate his indigency at the hearing.

That said, each appellant here both timely filed his indigency affidavit and timely moved the court for a free statement of facts. But the Court of Appeals held that “[t]he record does not show whether the trial court held a hearing to determine appellant’s indigent status ...” and that appellant did not exercise due diligence in asserting his indi-gency. Gray v. State, No. 05-92-01307-CR, 1994 WL 236284 (Tex.App.—Dallas [5th Dist.], 1994); Hickerson v. State, No. 05-92-00423-CR, 1994 WL 263355 (Tex.App.—Dallas [5th Dist.], 1994). This language implies that appellant did not meet the requirements of rule 53(j)(2) because he did not ensure that a hearing was held. Thus, under the court of appeals’ analysis, rule 53(j)(2) requires not only that an appellant claim he is indigent and move for a free statement of facts, but that he also successfully prod the trial court to conduct a hearing on that motion. On its face, however, the rule does not impose this duty on appellants and, although due process demands a hearing whenever a party must prove or disprove a factual proposition, this requirement in no way forces the party seeking the benefit of that hearing to ensure that it be held.

Perhaps the court of appeals only meant to read rule 53(j)(2) so as to demand that an appellant not only file his motion for a free statement of facts, but also present that motion to the trial court. Unlike Tex.RApp. P. 31(c)(1), however, rule 53(j)(2) does not state or necessitate such a requirement and we are not at liberty to inject it into the rule.

As to each appellant, Gray and Hickerson, we therefore vacate the judgment of the *563court of appeals and order this appeal to be abated while the trial court conducts a hearing to determine whether appellant is indigent. If the court finds that he is, it must provide him with a statement of facts at no charge, after which the time limits for prosecuting his appeal shall be calculated as in other cases. If the court finds that he is not indigent, it shall certify that fact to the court of appeals, which may then finally dispose of the appeal without further proceedings in the trial court.