Jesus Jaime Jimenez v. The State of Texas--Appeal from 198th Judicial District Court of Kerr County

No. 04-06-00435-CR

Jesus Jaime JIMENEZ,

Appellant

v.

The STATE of Texas,

From the 198th Judicial District Court, Kerr County, Texas

Trial Court No. B06-146

Honorable E. Karl Prohl, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: July 18, 2007

REVERSING ORDER DENYING APPELLANT'S MOTION FOR FREE REPORTER'S RECORD

This is an appeal from the trial court's order denying defendant Jesus Jaime Jimenez's motion for a free reporter's record. We reverse.

ABILITY TO PAY COSTS ON APPEAL

Defendant was convicted of organized criminal activity and the court reporter estimated the record would cost $15,000. Defendant asserts the trial court erred in denying his request for a free record on appeal because he offered uncontroverted evidence of his present inability to pay for the record.

We review a trial court's determination of indigence status under an abuse of discretion standard. However, a trial court does not have unfettered discretion to simply disbelieve a defendant's evidence of indigence. Whitehead v. State, 130 S.W.3d 866, 875 (Tex. Crim. App. 2004). "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." Tuck v. State, 215 S.W.3d 411, 415 (Tex. Crim. App. 2007). A determination of whether a criminal defendant is indigent is made at the time the issue is raised, rather than at a prior or future point in time. Id.

Here, the only witness to testify at the hearing was defendant, who testified by telephone from his place of confinement. Except for a brief period, defendant has been continuously incarcerated since August 2005 without means of earning income. He testified he has no stocks, bonds, investments, real property or bank accounts. He thought he had approximately $200 in his inmate trust account, funds he said his former wife sent to him. Prior to his incarceration, defendant claimed he worked in construction and, although he could not state how much he earned, he said he earned "just enough" to meet his needs. He claimed the vehicle he was driving at the time of his arrest, a 1999 GMC Yukon Denali, has been repossessed. As to whether he owned any other vehicles, defendant stated that he did not. Under defendant's May 2006 final divorce decree, no property was awarded to either defendant or his former wife.

To counter defendant's insistence that he had no assets, the State presented the following evidence of title to vehicles held in defendant's name: a 1990 Kawasaki jet ski, a 1997 Bombardier jet ski, a 1999 Bombardier jet ski, a fourteen-foot trailer, and a 1996 Dodge Stratus. Defendant asserted all the vehicles had been sold, and he did not understand why title was still in his name. He said the fourteen-foot trailer had been sold to raise money for attorney's fees. Following the hearing and pursuant to an agreement between the parties and the trial court, defendant submitted supplemental evidence of the following:

David Castillo's affidavit, in which Castillo stated that, in early 2005, he purchased a late 1980 or early 1990 Kawasaki model jet ski from defendant, for which he paid approximately $750 to $1,000.

The affidavit of defendant's former wife, Rosario Venegas, in which Venegas stated she sold a set of Bombardier jet skis in July 2005 "to a female individual whose name I cannot recall." Venegas said she had misplaced the bill of sale.

The affidavit of Venegas's former employee, Eddie Siegel, in which Siegel stated he was present within Venegas's shop when Venegas sold the jet skis, which included the trailer upon which they sat. He said the purchaser was a female who bought the jet skis for cash.

Appellate counsel's affidavit in which counsel stated she interviewed defendant's mother by telephone and his mother said she had sold a Dodge Stratus to another of her sons but that this son had gone to prison before he could change title into his name.

After considering all the evidence, including defendant's supplemental evidence, the trial court found that defendant's testimony was "in relevant part, . . . without credibility." The court also found that defendant "had large sums of money obtained through criminal enterprise as a member of the Mexican Mafia"; defendant was the recent registered or titled owner of several vehicles and watercraft; he had shifted assets to friends and/or relatives; and there was no evidence of consideration received for the transfer of assets or how the funds were spent. The court concluded defendant was not indigent.

Our review of the record from the indigency hearing reveals the following. Nothing in the record substantiates the State's allegation that defendant received or presently had access to any money, much less "large sums" of money, from the "Mexican Mafia." There is no evidence that defendant shifted assets to friends or family. Nothing in the record indicates whether the woman who purchased the Bombardier jet skis in July 2005 was related to or friends with defendant, and defendant's mother stated she sold one of the vehicles to another of her sons a year before the hearing on defendant's request for a free record. Instead, the record shows that, as of the date of the indigency hearing, defendant had been incarcerated without income since August 2005 and he owns no assets. Based on this record, we conclude the court did not have a reasonable, articulable basis to discount defendant's testimony regarding his present inability to pay for the reporter's record.CONCLUSION

We reverse the trial court's order denying defendant's request for a free reporter's record. Ms. Lisa Greenwalt is the reporter responsible for preparing, certifying and timely filing the reporter's record. Ms. Greenwalt is hereby ORDERED to file the reporter's record in this appeal no later than thirty days from the date of this opinion.

PER CURIAM

DO NOT PUBLISH