Santiago Alvarado v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00434-CR
Santiago ALVARADO,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-1190
Honorable Raymond Angelini, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

REVERSED AND RENDERED

Santiago Alvarado ("Alvarado") appeals the trial court's decision denying his application for a record on appeal at the state's expense. Because the trial court abused its discretion in denying Alvarado's request, we reverse the trial court's order and direct that the record be furnished without charge.

Background

A jury found Santiago Alvarado guilty of aggravated assault with a deadly weapon and sentenced him to 20 years imprisonment. Alvarado filed an application for a record on appeal at the state's expense. At the hearing on Alvarado's application, four witnesses testified that Alvarado was indigent and could not afford to pay for the record. All of the witnesses testified that Alvarado had no income, no assets, and no money to pay for a record. The witnesses also testified that friends and family had raised the money to pay for Alvarado's retained appellate attorney, but they could not raise any more money for the record. The State did not cross-examine any of the witnesses presented by Alvarado, and the State did not present any evidence that Alvarado was not indigent.

After hearing all of the testimony, the trial judge refused to grant Alvarado a record at the state's expense. The trial judge explained that he was willing to declare Alvarado indigent and grant him a free record, but Alvarado would have to accept a court appointed attorney in place of his retained attorney. The trial judge refused to allow a "hybrid"situation, stating, "I'm not going to have him have a hired lawyer and a free record, both."Alvarado appeals the trial court's denial of his request for a free record.

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 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.

Alvarado may not be denied a free record on the basis that his family gathered enough money to retain counsel for him. Abdnor, 712 S.W.2d at 142. The trial court must consider only Alvarado's financial condition at the time of the hearing. Id.

Alvarado and three other witnesses testified regarding Alvarado's financial status and his inability to pay for the record. By presenting some evidence that he was indigent, Alvarado 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 did not present any evidence that Alvarado was not entitled to the free record nor did it rebut the evidence presented by Alvarado. Because the evidence established that Alvarado was indigent, the trial court abused its discretion in denying Alvarado's request for a free record.

Conclusion

The trial court's order is reversed, and Alvarado's motion for the appellate record at the state's expense is granted.

Alma L. L pez, Chief Justice

DO NOT PUBLISH