Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:A trial court convicted Kenneth Tuck of theft over $20,000 and sentenced him to five years in prison. The trial court suspended the sentence and placed Tuck on community supervision for 10 years. After trial, Tuck timely filed a notice of appeal and motion for new trial. Subsequently, Tuck filed a motion for a free appellate record with an affidavit of indigency. The trial court held a hearing on Tuck’s motion. At the indigency hearing conducted on May 18, 2004, Tuck testified on his own behalf. On cross-examination, Tuck stated he earned approximately $450 per month, paid $540 a month for a 1997 Suburban and rented an apartment for $950 a month. Tuck further testified that he had borrowed money from his brother the last couple of months in order to pay for his expenses. He was unsure, however, how long he would be able to continue borrowing money from his brother. When questioned about other financial assets, such as stocks and savings accounts, Tuck responded that his only asset was a bank account that contained $100. At the conclusion of the cross-examination, the prosecutor stated the cost of the appellate record would be $2,100 for the transcript and estimated an additional $500 to $700 cost for three boxes of exhibits. After hearing Tuck’s testimony, the trial judge determined that the testimony and affidavit did not provide enough information to make a ruling on Tuck’s indigency motion. The trial judge ordered that Tuck fill out an information form on indigency and to provide additional information on his financial status. Pursuant to the trial court’s instruction, Tuck filed an indigence form and an addendum that included a two-week pay stub and income tax return for 2003. On the indigence form, Tuck claimed his total income per month was $1,200 and total necessary expenses per month were $1,790. Tuck’s total income was divided into two sources 1. $600 of Tuck’s own earnings and $600 of other funds. The trial judge decided that Tuck had not established his indigency and denied him a record at public expense. On appeal to the 3rd Court of Appeals, Tuck argued the trial court abused its discretion by denying him a free appellate record. Tuck alleged that he made the requisite prima facie showing of indigence, and that the state did not refute this showing. In a memorandum opinion, the court of appeals held that the trial court could have reasonably believed that some of Tuck’s expenses including Tuck’s $950 rent and $540 car payments were unnecessarily high. The 3rd Court found that a trial court could reasonably expect a person claiming a monthly income of $1,200 to find less expensive housing and means of transportation, and to use the money saved to pay the court reporter. Tuck filed his petition for discretionary review, which the Court of Criminal Appeals (CCA) granted to examine the issue of whether a defendant must prove the reasonableness of his expenses and financial obligations in order to obtain a free record for appeal. HOLDING:Vacated and remanded. A two-step process, the CCA stated, must be satisfied in order for a defendant to obtain indigent status and receive a free appellate record: 1. the defendant must make a prima facie showing of indigence; and 2. once a prima facie showing is made, the state then carries the burden to refute this showing and prove the defendant is not indigent. In reviewing the evidence, the CCA stated that a trial court cannot simply disregard evidence of indigence without reason. Rather, unless there is a reasonable, articulable basis in the record to discount it, a trial court must accept the defendant’s evidence as true. The CCA then held that an inquiry into the reasonableness of a defendant’s expenses is appropriate in order to adequately determine whether a defendant can pay or give security for an appellate record. Taxpayers, the CCA stated, should not have to pay for an appellate record on behalf of a defendant who is living a lifestyle substantially beyond his means while claiming to be indigent. Therefore, the CCA stated, it is acceptable for a trial court to make a finding that a defendant’s expenses are unreasonably high and could reasonably be reduced to an amount sufficient that the defendant is able to pay or give security for an appellate record. But the fact that a defendant’s income is less than his expenses, the CCA noted, does not create an automatic presumption that his expenses are unreasonable. The reasonableness of a defendant’s expenses and financial obligations must be viewed in light of the totality of his financial situation and not in isolation. In Tuck’s case, the CCA stated, the evidence shows that Tuck had a monthly income of $1,200 at most and expenses of $1,790, while the appellate record would cost between $2,100 and $2,800. Based on these facts, the CCA stated, it is apparent that Tuck is unable to pay or give security for an appellate record. Crediting only this evidence, we could only conclude that Tuck, by definition, would qualify as an indigent. A defendant, the CCA stated, establish a prima facie showing of indigence on nothing more than his own testimony. The state failed to show that $950 is an exorbitant amount to pay in rent for an apartment in the Austin area or that Tuck’s car payment is extravagant. Moreover, the CCA stated, the record contains no evidence that, even if Tuck reduced these expenses, he would then be able to pay for the record. The CCA found that it could not say that the record in Tuck’s case provided a basis for the trial court to reject the Tuck’s evidence of indigence. The CCA remanded the matter to the trial court to conduct a new indigency hearing. OPINION:Price, J., delivered the opinion for a unanimous court.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.