No. 04-03-00810-CR.
Delivered and Filed: February 4, 2004. DO NOT PUBLISH.
On Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-4482, Honorable Mark R. Luitjen, Judge Presiding. Reversed and Rendered.
Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice.
CATHERINE STONE, Justice.
Antonio Aragon ("Aragon") appeals the trial court's order denying his motion for a free statement of facts for purposes of appealing his conviction. Because the trial court abused its discretion in denying the request, we reverse the trial court's order and direct that the record be furnished without charge.
Background
A jury found Aragon guilty of aggravated assault with a deadly weapon and sentenced him to twenty years imprisonment. Aragon filed a motion for a free statement of facts for purposes of appeal. The trial court held a hearing on the motion on September 25, 2003. At the hearing on Aragon's motion, the only witness to testify was Aragon's mother, Patricia Aragon. Aragon's mother testified that she and her husband had borrowed $5,000 to retain the services of Edward Camara, Jr. ("Camara") to represent Aragon on appeal and had agreed to pay Camara $20,000 for representing Aragon on appeal. Aragon's mother testified that Aragon had been in jail since his conviction on July 10, 2003, and had lived with his parents prior to his incarceration. Aragon's mother further testified that Aragon did not have any accounts, cash, real property, pensions, government benefits, or other assets. In response to questioning by the State, Aragon's mother testified that Aragon owned a Mustang at the time of the offense. She testified that the Mustang was fairly new and was not paid off. Aragon's mother testified that she understood that the Mustang was used in the commission of the offense, but she was unaware of what happened to the Mustang. The trial court then engaged in its own series of questions. In response to those questions, Aragon's mother initially testified that her understanding was that the transcript was not covered by the fee paid pursuant to the contract with Camara because the records would be provided for free. As the trial court continued to question Aragon's mother regarding her understanding, Camara objected to the trial court's questioning, contending the trial court was badgering the witness. In response to the objection, the trial court stated that Camara could "have her back on direct." The trial court again asked whether the agreement retaining Camara's services included the cost of preparing the record. Aragon's mother responded, "Uh-huh." On re-direct examination, Aragon's mother clarified her understanding was that motions would be filed requesting a free record and the fees to be paid pursuant to the contract were only for the attorneys' fees. In ruling on the motion, the trial court stated that he believed the question of indigency turned on credibility and that he "did not believe [Aragon] at trial, nor [did he] believe [Aragon's] mother now, that the car is not to be found. There is no accounting for a $30,000, 2002 Mustang." The trial court added, "Now, there also is nothing in the evidence to indicate how much of that car he actually owed — or owned and how much he owed on it." The court then ruled, "Notwithstanding the question of indigency, my ruling is going to be based on contract law and that is that this contract says you will pay for that record and the County will not." In response to Camara's request to provide evidence regarding the financing of the Mustang, the trial court stated, "And I'm not going one way or the other on the issue of the value of the vehicle. . . . And, I mean, if you want to redevelop more of that record, you're welcome to." Finally, the trial court noted the dates that the request for a record was filed, stating, "You don't get a free record unless you file your notice and request for a record in a timely fashion." After the hearing, on October 22, 2003, Aragon filed a supplemental affidavit of indigency, attaching an affidavit stating that the Mustang was financed by Ford Credit. The affidavit further stated that the Ford Credit National Recovery Center foreclosed on its lien and repossessed the car on September 23, 2003. The Mustang was sold at auction for less than the amount owed by Aragon, leaving a balance owed by Aragon of $9,778.39. The trial court signed a written order denying the motion for free statement of facts on December 1, 2003. Discussion
A trial court's determination of indigence is reviewed under an abuse of discretion standard. Newman v. State, 937 S.W.2d 1, 3 (Tex.Crim.App. 1996). Since appellate review of criminal convictions is provided in Texas, the trial court has a duty to provide an indigent defendant with an adequate record for appeal. Newman, 937 S.W.2d at 3; Abdnor v. State, 712 S.W.2d 136, 139-40 (Tex.Crim.App. 1986). A determination of whether a defendant is entitled to a free transcription of the court reporter's notes is to be made on a case-by-case basis. Newman, 937 S.W.2d at 3; Abdnor, 712 S.W.2d at 141. When the court considers whether the defendant has met his burden, the court must consider only the defendant's personal financial condition at the time of the hearing. Abdnor, 712 S.W.2d at 142. The resources of friends and family are not relevant when such persons are not legally bound to pay for the defendant's appellate expenses. Snoke v. State, 780 S.W.2d 210, 213 (Tex.Crim.App. 1989); Abdnor, 712 S.W.2d at 142. While the court may consider that a defendant has retained counsel for trial or posted bond, these facts are not determinative on the question of indigency. Abdnor, 712 S.W.2d at 142. Retained counsel "is not bound to furnish [the] appellate record at his own expense or to handle the appeal without [a] fee." Id. Aragon may not be denied a free record on the basis that his parents gathered enough money to retain counsel for him. Abdnor, 712 S.W.2d at 142. The trial court must consider only Aragon's financial condition at the time of the hearing. Id. Aragon's mother testified regarding Aragon's financial status and his inability to pay for the record. By presenting some evidence that he was indigent, Aragon shifted the burden to the State to disprove his entitlement to the free record. Newman, 937 S.W.2d at 3; Snoke, 780 S.W.2d at 213. The State failed to present any positive evidence that Aragon had any assets with which he could pay or post security for a free record. See Abdnor, 712 S.W.2d at 143. The vague references to a Mustang previously owned by Aragon are not sufficient, particularly since the trial court's remarks: (1) indicated that it was not relying on the value of the Mustang; and (2) permitted Aragon to supplement the record regarding the Mustang's value. The record, as supplemented, establishes that Aragon no longer owned the Mustang and that the auction after the foreclosure failed to extinguish the existing lien balance. With regard to the trial court's reliance on the contract between Camara and Aragon's parents, the contract expressly states that the payment is for "attorney's fee[s] not including expenses and costs." The contract further states, "The client agrees that the attorney is not required to advance Court costs and transcript and trial record preparation expenses on the Appellant's behalf." As previously noted, retained counsel "is not bound to furnish [the] appellate record at his own expense or to handle the appeal without [a] fee." Abdnor, 712 S.W.2d at 142. Finally, with regard to the timeliness of the request, Aragon was sentenced on July 10, 2003. A motion for new trial was timely filed on August 7, 2003. Accordingly, the notice of appeal was not due to be filed until October 8, 2003, and the record was not due to be filed until November 7, 2003. The motion for a free statement of facts was filed on August 26, 2003. If the trial court's reference to the timeliness of the request was intended as a basis for the trial court's ruling, the trial court abused its discretion in concluding that Aragon's request for a free record was not timely made. Because the evidence established that Aragon was indigent, the trial court abused its discretion in denying Aragon's request for a free record. Conclusion
The trial court's order is reversed, and Aragon's motion for a free statement of facts on appeal is granted.