Opinion
No. 10-06-00200-CR.
Order issued and filed November 29, 2006 DO NOT PUBLISH
Appeal From the County Court, Navarro County, Texas, Trial Court No. 57281.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
ABATEMENT ORDER
In a de novo appeal from justice court, a jury convicted Terry Ray James of making an unsafe lane change and imposed a $125 fine. James perfected this appeal pro se and filed an indigence motion and supporting affidavit under Rule of Appellate Procedure 20.2, seeking to have the appellate record furnished without charge. The trial court signed an order finding that James is not indigent without holding a hearing on the matter. James is appealing both his conviction and the indigence ruling. See Duncan v. State, 158 S.W.3d 606, 606-07 (Tex.App.-Waco 2005, order) (per curiam). James's fine was imposed on April 25, 2006. He filed his notice of appeal on May 18. Contemporaneously with the notice of appeal, James filed a Motion to Proceed in Forma Pauperis, accompanied by an Affidavit of Inability to Give Costs on Appeal. The court signed an order on May 22 stating:
On this date, after examining the foregoing information, the Court finds that the defendant is not indigent and that no attorney should be appointed, and the Court further finds that the defendant is not indigent and Motion to Proceed in Forma Pauperis is denied.James contends that the court abused its discretion by finding him indigent without first holding a hearing. Rule 20.2 provides in pertinent part that the appellate record must be furnished to an appellant without charge, "[i]f after hearing the motion the court finds that the appellant cannot pay or give security for the appellate record." TEX. R. APP. P. 20.2 (emphasis added). As the Court of Criminal Appeals has said, "the free record rule does not offer the option of ruling upon the motion itself." Whitehead v. State, 130 S.W.3d 866, 874 (Tex.Crim.App. 2004). "To obtain a free record, the defendant must exercise due diligence in asserting his indigence and must sustain his allegations at the hearing." Id. at 876. Here, it is undisputed that the court did not hold a hearing on James's indigence claim. The State concedes in its brief that this was error. Accordingly, we hold that the court abused its discretion by denying James's indigence claim without a hearing. Therefore, we will abate this cause to the trial court for a hearing to determine the merits of James's indigence claim. The trial court shall, within thirty days after the date of this Order: (1) conduct the hearing; (2) cause a court reporter to make a record of the hearing; (3) make appropriate orders and findings of fact and conclusions of law; and (4) deliver any orders and findings of fact and conclusions of law to the trial court clerk. If the trial court determines that James is indigent, then the clerk's record (including any orders and findings prepared in connection with the indigence hearing) and the reporter's record, including a transcription of the trial (if any was made) and of the indigence hearing, shall be filed within sixty days after the date of this Order. See In re A.G., 195 S.W.3d 886, 887 (Tex.App.-Waco 2006, order) (per curiam).
A limited clerk's record has already been filed containing items pertinent to James's indigence claim. The items contained in this limited clerk's record need not be included in the clerk's record required by this Order.