Jesus Manuel Navarrette v. State ( 2011 )

Order filed December 15, 2011

                                                                       In The

Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-11-00331-CR

                                                    __________

                        JESUS MANUEL NAVARRETTE, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

                                   On Appeal from the 70th District Court

                                                             Ector County, Texas

                                                   Trial Court Cause No. A-36,468

                                                                     O R D E R

            Appellant, Jesus Manuel Navarrette, timely filed a notice of appeal from his convictions for the offenses of aggravated sexual assault.  The clerk’s record and the reporter’s record are now past due.  Appellant has filed a motion requesting this court to direct the trial court to provide him with a free record on appeal.  Attached to the motion are two orders: one finding appellant indigent and granting his request for a free record and one denying appellant’s request for a free record.  We abate the appeal. 

The trial court initially granted appellant’s request for a free record and appointed counsel to represent appellant on appeal because it determined that appellant was indigent.  Appellant’s family subsequently retained other counsel to represent appellant on appeal, and both this court and the trial court allowed the substitution of counsel.  In its order authorizing the substitution of counsel, the trial court noted, “Defendant’s request for a free record is denied.”

An indigent criminal defendant has a constitutional right to a free appellate record in a first appeal of right.  See Griffin v. Illinois, 351 U.S. 12, 18-19 (1956); Abdnor v. State, 712 S.W.2d 136, 139 (Tex. Crim. App. 1986).  The determination of indigence for this purpose is based upon the financial status of the appellant at the time of the appeal, not the trial, and implicates the personal financial condition of the appellant, not that of his parents or other relatives.  Abdnor, 712 S.W.2d at 142.  “Outside sources such as relatives . . . are not to be considered unless they are legally bound to pay for defendant’s appellate expenses.”  Id.  Furthermore, an appellant cannot be deprived of his right to a free record on appeal by the mere fact that he was represented by retained counsel at trial.  Id.  We will abate the appeal so that the trial court, who is in the best position to make such determinations, may resolve the issues surrounding appellant’s asserted indigence.  See McFatridge v. State, 309 S.W.3d 1 (Tex. Crim. App. 2010).

            The trial court is directed to conduct a hearing on or before January 20, 2012, to determine the following:

1. Whether appellant desires to prosecute his appeal;

2. Whether appellant is indigent; and

3. If indigent, whether appellant is entitled to a free appellate record.

The trial court is requested to make appropriate findings and recommendations.  Appellant’s proof at such hearing may be had by affidavit alone.  See Tex. R. App. P. 20.2; Abdnor, 712 S.W.2d at 142.  If it is determined that appellant is indigent and is entitled to a free appellate record, the clerk’s record and the reporter’s record from the trial are due for filing in this court on or before February 6, 2012. 

The clerk of the trial court is directed to prepare and forward to this court a supplemental clerk’s record containing the findings, recommendations, and any orders of the trial court regarding appellant’s indigence.  The court reporter is directed to prepare and forward to this court the reporter’s record from the indigence hearing.  These records are also due to be filed in this court on or before February 6, 2012.

            The appeal is abated.

                                                                                                PER CURIAM

December 15, 2011

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Kalenak, J.