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JOHN HOWARD ABDNOR v. STATE TEXAS (06/11/86)

June 11, 1986

JOHN HOWARD ABDNOR, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE



Petition for Discretionary Review from the Court of Appeals, Fifth Supreme Judicial District of Texas (DALLAS County).

COUNSEL

Ronald L. Goranson, Dallas, Texas, Oscar H. Mauzy, Grand Prairie, Texas for Appellant.

Henry Wade, D.A. & Ruth E. Plagenhoef, Karen Chilton Beverly, Gerald Banks & Mike Gillette, Asst. D.A's., Dallas, Texas, Robert Huttash, State's Attorney, Austin, Texas for State.

En Banc. Onion, Presiding Judge.

Author: Onion

Opinion ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

Appellant was convicted of murder, and his punishment was assessed by the jury at life imprisonment. On appeal the appellant asserted in a single ground of error that the trial court erred in denying his request, as an indigent, for a statement of facts for the purpose of his appeal in violation of federal and state constitutional provisions and Article 40.09, § 5, V.A.C.C.P. The Court of Appeals found no error in the trial court's ruling denying appellant the status of an indigent for the purpose of securing a free transcription of the court s and affirmed the conviction. Abdnor v. State, 687 S.W.2d 14, 15 (Tex.App. - Dallas 1984). We granted appellant's petition for discretionary review to determine the correctness of the Court of Appeals' decision.

Before addressing appellant's claims, we begin by reviewing the procedural history of the present case. On September 3, 1980, appellant was indicted for the murder of Janis Ballew, a nurse with whom he had allegedly become personally involved. A hearing was held to determine appellant's competency to stand trial, and on March 10, 1981, a jury found appellant to be competent.

Appellant's trial commenced on September 14, 1981, and on October 26, 1981, the jury returned a guilty verdict. Punishment was assessed at life imprisonment. Appellant's motion for new trial was overruled on December 10, 1981, and a timely notice of appeal was filed on the same day. Also on December 10, 1981, appellant filed his affidavit for a transcription of the s or statement of facts, which was denied by the trial judge on December 14, 1981, after a hearing on indigency before the court.

Appellant applied to the Dallas Court of Appeals for a writ of mandamus to obtain a statement of facts for the purpose of the appeal of his murder conviction. The Court of Appeals ruled that since notice of appeal had been given it had statutory mandamus jurisdiction to enforce its appellate jurisdiction, however, appellant failed to sustain his burden to establish the truthfulness of his affidavit of indigency. Abdnor v. Ovard, 635 S.W.2d 864, 867-69 (Tex.App. - Dallas 1982). This Court subsequently granted appellant's petition for discretionary review and held:

"An appellant may contest the trial court's denial of indigency status on appeal, not by application for writ of mandamus. Accordingly, though we disagree with the reasons for denying mandamus relief given by the Court of Appeals, that denial is affirmed." Abdnor v. Ovard, 653 S.W.2d 793, 794 (Tex.Cr.App. 1983).

Appellant pursued his appeal to the Dallas Court of Appeals reurging the identical issue concerning his request for a statement of facts on appeal. The Court of Appeals decided that appellant was not entitled to a free transcript of the evidence due to his failure to personally testify to the truthfulness of his own affidavit of indigency. Abdnor v. State, 687 S.W.2d, supra, at 16. Following the denial of appellant's motion for rehearing by the Court of Appeals, appellant filed his petition for discretionary review in this Court.

At the indigency hearing based upon appellant's affidavit filed pursuant to Article 40.09, § 5, V.A.C.C.P., on December 14, 1981, the appellant called Sandra Day, the official court reporter for the 265th District Court. She testified she estimated the statement of facts would amount to 750 pages at $3.50 per page and cost $24,500. She related that she would require a $12,500 down payment before commencing the preparation of the transcription of her notes, and when it was half finished she would require the payment of the balance. On cross-examination she testified she had prepared excerpts of appellant's competency to stand trial hearing at the request of appellant's father as his "personal copy, an extra copy." Day also testified that on December 7, 1981, some seven days earlier, appellant's father had paid $7,000 as a "down payment" towards a personal copy of the entire transcript. Nothing indicated Day had commenced the preparation of the statement of facts.

John Abdnor, appellant's father, testified he had been appointed by the Dallas County Probate Court as the 41-year-old appellant's guardian in March 1981; that appellant was unemployed, and since July 1980 appellant has been confined in jail or a mental hospital. As guardian he familiarized himself with appellant's assets and liabilities, and his ability to earn income. He stated the appellant had no household furnishings, no stocks or bonds or real estate or any assets except as listed on a financial statement of total assets and liabilities and reflecting a negative net worth of $10,000.*fn1 The record reflects:

"Q. Okay, now, in fact, your son has no assets or any income to pay for the -- himself to pay individually to pay for this statement of facts, the transcript ...


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