Robert Donnell Davis, Jr. v. The State of Texas--Appeal from County Criminal Court No. 3 of Denton County

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Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2004 » Robert Donnell Davis, Jr. v. The State of Texas--Appeal from County Criminal Court No. 3 of Denton County

State: Texas

Court: Texas Northern District Court

Docket No: 02-04-00462-CR

Case Date: 11/18/2004

Plaintiff: Texas Department of Public Safety

Defendant: Jay Bridges--Appeal from County Court at Law of San Patricio County

Preview:Richard (Ricardo) Acevedo v. Commission for Lawyer Discipline--Appeal from 73rd Judicial District Court of Bexar County
/**/ MEMORANDUM OPINION

No. 04-02-00718-CV

Richard ACEVEDO, Appellant

v.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2000-CI-16459 Honorable Anne Ashby, Judge Presiding

Opinion on Appeal of Order Sustaining Contest to Affidavit of Indigence

PER CURIAM Sitting: Sarah B. Duncan, Justice Karen Angelini, Justice Sandee Bryan Marion, Justice

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Delivered and Filed: January 29, 2003

ORDER SUSTAINING CONTEST TO AFFIDAVIT OF INDIGENCE AFFIRMED Richard Acevedo timely appealed the trial court s judgment of disbarment and filed an affidavit of inability to pay costs. The trial court sustained the Commission for Lawyer Discipline s contest to the affidavit, and Acevedo appealed the trial court s order. Clerk s and reporter s records containing items material to the order sustaining the contest have been filed and both parties have filed briefs on the issue. Acevedo contends the order should be reversed because the trial court s order was untimely, he presented sufficient evidence of indigence, and the trial court inappropriately called her court coordinator as a witness. We affirm the order sustaining the contest. Standard of Review When the trial court decides a matter involving both factual determinations and legal conclusions, we review the decision for abuse of discretion. Pony Exp. Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex. App. San Antonio 1996). With respect to resolution of fact issues, the trial court abuses its discretion only if the record establishes it could reasonably have reached only one decision, and it failed to do so. Id. at 839-40. However, our review of the trial court s determination of the legal principles controlling its ruling is much less deferential. A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. at 840. Discussion Acevedo first contends the hearing on the contest and the order sustaining the contest were untimely. We disagree. Acevedo filed his affidavit of inability to pay costs on October 11, 2002. The Commission filed a contest to the affidavit on October 18, 2002, within the ten day period for doing so. See Tex. R. App. P. 20.1(c). The trial court was required to either conduct a hearing or sign an order extending the time to conduct a hearing within ten days after the contest was filed. See Tex. R. App. P. 20.1(i)(2)(A). The trial court complied with this requirement on October 25, 2002, by signing an order extending the time for a hearing for a period of twenty days. The trial court conducted the hearing and signed the order sustaining the contest on October 30, 2002, within the period allowed by the Rules of Appellate Procedure. See Tex. R. App. P. 20.1(i)(3)-(4). Acevedo contends the order extending the time for a hearing is ineffective because it is handwritten, may have been signed by the judge in her office in Dallas, and appears to have been entered without a corresponding motion. We know of no authority precluding the court from signing a handwritten order or from extending the time to hold a hearing on a contest on its own motion. There is no evidence in the record that the judge signed the extension order in Dallas. Finally, Acevedo contends he: received actual notice of this order at a time beyond October 29, 2002, and under TRAP 4.2 the signing of this order became effective when actual notice was gained. Thus, the trial court did not timely hold a hearing nor within that time did it effectively sign an order extending the time to conduct a hearing.

Rule 4.2 of the Texas Rules of Appellate Procedure has no applicability in this situation. Because the trial court s October 25, 2002 order extending the time to hold a hearing on the contest was effective when it was signed, the hearing on the contest and the court s order sustaining the contest were timely. Acevedo next complains that the trial judge called her court coordinator to testify; consequently, he contends, the judge abandoned her role of neutrality and became an advocate for the Commission. We disagree. Rule 20.1(i)(1) requires the trial court to set a hearing on a timely filed contest and to notify the parties of the hearing. At the beginning of the hearing, Acevedo claimed he had not received notice of the contest or of the hearing. In light of Acevedo s contention he had not received notice, Judge Ashby called her coordinator to testify as to her actions in notifying Acevedo of the

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hearing. We find no error in the judge s actions. Finally, Acevedo contends the trial court abused its discretion in sustaining the contest. When a timely contest is filed, the party who filed the affidavit of inability to pay costs bears the burden of proving by a preponderance of the evidence that he would be unable to pay costs if he really wanted to and made a good faith effort to do so. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App. San Antonio 2001, pet. denied) (quoting In re Sosa, 980 S.W.2d 814, 815 (Tex. App. San Antonio 1998, no pet.). Acevedo testified he is unemployed and has no money; however, he could not say whether he has a bank account because his wife handles all the money. He testified he does not own a house; however, the Commission introduced evidence that the house Acevedo lives in is listed as Acevedo s homestead with the Bexar County Appraisal District. Acevedo testified he does own several junk lots he contends are not worth over $1,000 each. However, he could not say where the lots are located. The Commission offered into evidence a deed to Acevedo from his brother for property on Magnolia. Acevedo testified his stepson lives on the property and the property had been sold. However, he stated he did not know who it was sold to, when, on what terms, or whether he is receiving payments on the property. In his affidavit, Acevedo stated he is the sole support for [his] family and [has] 12 mouths to feed. When questioned about these twelve people, Acevedo refused to identify them, other than to say they are human beings. He does not recall if he claimed any of them as dependents on his tax return, and when questioned further, Acevedo stated, I plead the fifth on everything else you have. ... I wish to leave. Acevedo failed to provide any information regarding the nature and amount of his debts or his monthly expenses. In light of this testimony, the trial court was well within its discretion in finding Acevedo failed to meet his burden. The trial court did not abuse its discretion in sustaining the Commission s contest to Acevedo s affidavit of inability to pay costs, and we affirm the trial court s order. PER CURIAM Publish

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