Opinion
12-23-00308-CR
01-23-2024
EX PARTE: OMARION LEWIS
APPEAL FROM THE 217TH JUDICIAL DISTRICT COURT ANGELINA COUNTY, TEXAS
ORDER
PER CURIAM.
Omarion Lewis appeals from an order denying his petition for writ of habeas corpus. According to the case information sheet from the Angelina County District Clerk's Office, Appellant was not declared indigent in the trial court and his counsel is retained. However, Appellant filed a motion to proceed in forma pauperis with this Court. The clerk's and reporter's records were originally due on December 27, 2023. The District Clerk filed a motion for extension, citing non-payment of the required preparation fee as the reason for the delay. We granted the motion to January 16, 2024. We gave Appellant until January 12 to provide proof of full payment to the District Clerk. On January 12, the reporter advised this Court that no payment arrangements have been made for the reporter's record. We gave Appellant until January 22 to provide proof of full payment to the reporter. These deadlines passed without a response from Appellant.
If an appellant is unable to pay for the appellate record, he may, by motion and affidavit, ask the trial court to furnish the record without charge. Tex.R.App.P. 20.2. For purposes of qualifying as indigent to receive a free copy of the appellate record, a defendant must be unable to pay or give security for the record. McFatridge v. State, 309 S.W.3d 1, 5 (Tex. Crim. App. 2010). Indigency determinations are made when raised and are decided on a case-by-case basis. Id. "Determining indigency for purposes of appointing counsel and indigency for purposes of obtaining a free record are discrete inquiries[.]" Id. at 5-6. "A defendant can be found indigent for one purpose without being found indigent for the other." Id. at 6.
Here, the online Angelina County court records do not definitively reflect that Appellant filed his motion to proceed in forma pauperis in the trial court or otherwise reflect that Appellant filed a motion requesting a free appellate record or that the trial court found Appellant indigent for purposes of obtaining a free record. Accordingly, It is ORDERED that the Honorable Robert K. Inselmann, Jr. shall conduct a hearing, on or before February 7, 2024, and make written findings of fact and conclusions of law as to whether (1) Appellant is indigent and entitled to a copy of the clerk's and reporter's records without charge, and (2) if Appellant is not so entitled, the date he will make acceptable payment arrangements for the record.
See Tex.R.App.P. 37.3(a)(2) (if clerk's or reporter's record has not been timely filed, appellate court must make whatever order is appropriate to avoid further delay and to preserve parties' rights); see also Tex.R.App.P. 37.3(b) (if clerk failed to file record because appellant failed to pay or make arrangements to pay clerk's preparation fee, appellate court may dismiss appeal for want of prosecution unless appellant entitled to proceed without payment of costs; court must give appellant reasonable opportunity to cure before dismissal); Goley v. State, No. 07-18-00145-CR, 2018 WL 3766796, at *1-2 (Tex. App.-Amarillo Aug. 8, 2018, order) (per curiam) (where appellant was declared indigent and appointed counsel, but later retained counsel, appellate court remanded for trial court to consider whether appellant was entitled to free reporter's record).
It is FURTHER ORDERED that a supplemental clerk's record including any necessary findings of fact and conclusions of law, along with any supporting documentation and orders, be certified to this Court on or before February 14, 2024.
It is FURTHER ORDERED that the court reporter file a reporter's record of the hearing on or before February 14, 2024.
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the 23rd day of January 2024, A.D.