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89 S.W.3d 744

Ramadan v. State

Court of Appeals of Texas

Decided October 17, 2002

Court of Appeals of Texas · decided 2002-10-17

Cited by 1 later decisions — most recently February 2008

1 state decisions

Key passage — most relied on by later courts

“Within the time for perfecting the appeal, an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge. If after hearing the motion the court finds that the appellant cannot pay or give security for the appellate record, the court must order the reporter to transcribe the proceedings. When the court certifies that the appellate record has been furnished to the appellant, the reporter must be paid from the general funds of the county in which the offense was committed, in the amount set by the trial court. Tex.R.App. P. 20.2.”

quoted by 1 later decision, including Easily v. State

Relies on Abdnor v. State · Rosales v. State · Snoke v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2002-10-17

View the full empirical analysis of this case →

¶1ORDER OF ABATEMENT

PER CURIAM.

¶2A jury found appellant, Muhannad Ali Ramadan, guilty of attempted murder and *746sentenced him to 20 years confinement. In a preliminary issue, appellant contends the trial court abused its discretion in denying his application for the record on appeal at the State’s expense. We abate the appeal and order the trial court to provide a reporter’s record to appellant for purposes of his appeal.

¶3Procedural Background

¶4Appellant filed timely notice of appeal, a designation of record on appeal, and an application for a record on appeal at state expense. The trial court conducted an indigency hearing on appellant’s application. Appellant testified that he desired to appeal his conviction and sentence and that he was indigent and without funds, income, or assets to pay for the record on appeal. After hearing testimony and argument, the trial court denied appellant’s request.

¶5Indigency

¶6In a criminal case, an indigent appellant may, by motion and affidavit, request the trial court to furnish an appellate record without charge. Tex.R.App. P. 20.2. If, after hearing an appellant’s motion, the court finds the appellant cannot pay or give security for the record, the court must order the reporter to furnish the record to the appellant. Id.

¶7We review a determination of in-digency under an abuse of discretion standard. Hornsby v. State, 65 S.W.3d 801, 802 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Unless the State offers evidence which refutes a defendant’s claim, the defendant is entitled to a free record upon a prima facie showing of indigency. Id.The defendant bears the initial burden to substantiate his sworn allegation of indigency. Snoke v. State, 780 S.W.2d 210, 213 (Tex.Crim.App.1989). Once the defendant meets his burden of production, the burden shifts to the State to produce evidence that the defendant is not in fact indigent. Id.

¶8Indigency determinations are made on a case-by-case basis, and it is dear that any attempt by a court to set rigid standards will not be accepted. Rosales v. State, 748 S.W.2d 451, 455 (Tex.Crim.App.1987). The trial court must determine appellant’s financial status at the time of appeal, not at the time of trial. Id.Unless legally bound to pay, outside sources such as parents or relatives may not be considered by the trial court in the determination of indigency. Abdnor v. State, 712 S.W.2d 136, 142 (Tex.Crim.App.1986). Further, an appellant may not be deprived of a free record simply because the appellant was represented by retained counsel at trial. Id.

¶9Here, appellant exercised due diligence by timely filing his affidavit of indi-gency requesting his appellate record at State expense. An indigency hearing was held, and appellant offered testimony upon direct and cross-examination. Appellant testified that he possessed no income or assets. Specifically, he stated he had no real estate, stocks, bonds, bank accounts, investments, personal, or community property. Appellant further testified that his common-law wife owned a car that was her separate property and she earned a minimum wage while raising two children.

¶10The State offered no evidence at the hearing to contradict or rebut any of appellant’s testimony concerning his indigen-cy. It was also undisputed that his appellate counsel was retained by relatives, and counsel was not paid or retained by appellant.

¶11The State concedes the merits of appellant’s point of error. However, the State argues that an estimate of cost for the record may be required under Abdnor, and *747an attempt should be made to enter into a payment plan with the court reporter. We disagree. Texas law does not require an estimate of costs to be made by an appellant, nor does it prohibit an appellate record because of the cost. See Tex.R.App. P. 20.1, 20.2. Moreover, under the present circumstances, it is unnecessary to establish a payment plan because the record reveals that appellant is completely indigent.

¶12Conclusion

¶13We hold the trial court abused its discretion in denying appellant’s application for a record on appeal at state expense. We set aside the trial court’s order denying the application, abate the appeal, and order the trial court to provide appellant with the complete record of the entire trial proceedings with all expenses borne by the State.

¶14It is so ORDERED.

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