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Click here for the full text of this decision FACTS:The appellant raised three contentions in an appeal from the trial court’s order denying indigent status. First, the appellant argued that the trial court failed to follow the procedures set forth in Texas Code of Criminal Procedure Article 26.04 regarding the determination of indigence. She complained that the trial court did not appoint a lawyer to represent appellant at the hearing on indigence and that the court did not request that appellant complete a questionnaire or submit to examination from the court. Second, appellant contended that the trial court abused its discretion in denying the requests for an appointed lawyer and a free record. She claimed that the documents she submitted satisfied a prima facie showing of indigence � shifting the burden of proof to the state and requiring a ruling in her favor if the state produced no contrary evidence. Finally, she contended that the trial court abused its discretion in ordering defense counsel to remain as appellate counsel. She argued that there was no evidence at the hearing that defense counsel had entered into an agreement with her to represent her, that he was getting paid for his services, or even that appellant wanted him to represent her on appeal. Although appellant conceded that defense counsel participated in the trial, she claimed that such participation did not alone qualify him to pursue a criminal appeal on her behalf. The court of appeals found that the trial judge failed to comply with the procedures prescribed by Article 26.04 regarding the appointment of counsel: “the trial judge wholly failed to make any inquiry, or to consider any of the factors prescribed by article 26.04.” The court of appeals also found that appellant made a prima facie showing of entitlement to a free record under Texas Rule of Appellate Procedure 20.2. Finally, the court of appeals found that the trial court abused its discretion in refusing to permit defense counsel to withdraw from the case. The court of appeals remanded the case to the trial court “to immediately conduct a hearing to comply with Article 26.04 and Rule 20.2.” The court further held that: “On remand, the trial court may conclude that appellant is or is not indigent. If the court finds she is not indigent, appellant may appeal that determination. However, if the court finds that appellant is indigent, the court must appoint counsel and direct the court reporter to file the reporter’s record in the appeal on the merits without charge. If the court so finds, then it shall cause a supplemental clerk’s record to be filed in the appeal on the merits containing a signed, written order or orders to this effect.” The state petitioned for discretionary review. HOLDING:The judgment of the court of appeals is reversed in part and affirmed in part. The case is remanded to the trial court to determine whether appellant wishes to appeal the judgment of conviction, and if so, whether she wishes to proceed pro se or with retained counsel. If defense counsel so desires and appellant consents, he may volunteer to remain as retained counsel; otherwise, he must be permitted to withdraw. The trial court is free to reconsider appellant’s indigence under Article 26.04 or Rule 20.2 if it finds a material change in circumstances has occurred since it last considered the issue. Otherwise, appellant’s notice of appeal from the judgment of conviction will be due 30 days from the date mandate issues in this case, and if notice of appeal is filed, the record will be due 120 days from the date of mandate. The court holds that the court of appeals erred in holding that the trial court failed to conduct an adequate indigence hearing. The court also holds that the court of appeals erred in holding that appellant made out a prima facie case of indigence for Rule 20.2 purposes. However, the court holds that the court of appeals correctly held that the trial court abused its discretion when it refused to permit defense counsel to withdraw after the indigence question was decided. Assuming, without deciding, that affidavits from appellant and defense counsel and the affidavit from the court reporter were properly part of the record, the court nevertheless holds that they cannot be considered in a review of the trial court’s order because the affidavits were not before the trial court at the time of its ruling. Also, the court holds that allegations in the motion to appoint counsel are not evidence for the purpose of appointing counsel or for obtaining a free record. This court 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. The court has implied that the two-step process should also be used to determine whether to appoint counsel for appeal. The standard of review that attends this two-step process differs somewhat from the standard of review articulated recently in Ross v. State, 32 S.W.3d 853 (Tex. Crim. App. 2000). In Ross, the court upheld a trial court’s ruling granting a motion to suppress on the basis that the trial court might have completely disbelieved the testimony of the state’s witness, even though that testimony was uncontroverted. If the Ross standard were applied to the case at hand, the trial court could simply disbelieve appellant’s statement in her affidavit that the financial documents are an accurate depiction of her circumstances and, consequently, disbelieve the financial documents themselves, which are simply appellant’s summary of her financial situation. By contrast, past cases suggest that the trial court does not have the nearly unfettered discretion seen in other contexts to simply disbelieve the defendant’s evidence of indigence. The court concludes that these past cases, rather than the standard articulated in Ross, should continue to govern a trial court’s determination of and appellate review of indigence matters. OPINION:Keller, P.J.; Meyers, Price, Johnson, Holcomb and Cochran, JJ., join. Womack, J. concurs in the result. CONCURRENCE: Price, J., filed a concurring opinion, in which Johnson, Holcomb and Cochran, JJ., join. “I agree with the majority’s conclusions that 1. the trial court should have allowed retained counsel to withdraw, 2. the sworn documents before the trial court indicate that the appellant had enough money to retain counsel, and 3. there was no sworn evidence in the record of how much the record would cost before the trial court ruled on the motion. I write separately to emphasize that the trial court may reconsider the appellant’s indigence if the circumstances have changed since the trial court first ruled, and therefore the appellant may bring these changed circumstances to the trial court’s attention.” CONCURRENCE: Hervey, J., filed a concurring opinion in which Keasler, J., joined. “I join parts IA., I.B., II.E., and III. of the Court’s opinion. The discussion in part II.B. of the Court’s opinion on the appellate standard of review of a trial court’s ultimate determination of non-indigence is unnecessary because the issue here is whether to uphold the trial court’s determination that appellant failed to make a prima facie showing of indigence, which is a question of law.”

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