Joel Derek Rojo v. State ( 2017 )

Order filed October 19, 2017
In The
Eleventh Court of Appeals
__________
Nos. 11-17-00225-CR, 11-17-00226-CR,
11-17-00227-CR, & 11-17-00228-CR
__________
JOEL DEREK ROJO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause Nos. 14814, 14813, 14690, & 14689
ORDER
Joel Derek Rojo timely filed notices of appeal from four judgments of
conviction. The appeals are currently pending in this court, and the reporter’s record
is now past due. The trial court denied Appellant’s request for a free copy of the
record as being untimely filed. Appellant has now filed a motion in this court in
which he asks for a reversal of the trial court’s denial of Appellant’s request for a
free record. We abate the appeals.
Appellant was sentenced for each offense on August 11, 2017. On August 25,
2017, attorney Angela Moore filed the notices of appeal. Moore, who was retained
to represent Appellant on appeal, did not represent Appellant at trial. Moore asserts
that she sent her incarcerated client an affidavit of indigence to fill out and return to
her and states that she mailed it to the trial court clerk on September 13. The clerk’s
records show that the motion for a free record and Appellant’s affidavit were filed
on September 15. The court reporter filed a contest to Appellant’s claim of
indigence1 and requested a hearing. The next day, and apparently without a hearing,
the trial court considered and denied Appellant’s motion for a free record. In its
order, the trial court first noted that Appellant had not previously been determined
to be indigent and then denied the motion because “the filing was untimely” under
TEX. R. APP. P. 20.2.
The trial court relied on Rule 20.2, which provides: “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. . . .” TEX. R. APP. P. 20.2 (emphasis added). Despite such language
in the rules, the Court of Criminal Appeals has determined that the failure of counsel
to comply with a simple procedural rule, such as timely filing a request for a free
reporter’s record, may operate to deny a defendant the opportunity to present his
appeal at a meaningful time and in a meaningful manner. Ward v. State, 740 S.W.2d
794, 800 (Tex. Crim. App. 1987). The “absence of a statement of facts renders
appellant’s appeal a ‘meaningless ritual.’” Id. (quoting Evitts v. Lucey, 469 U.S.
387, 394 (1985)). Under Ward, we cannot uphold the trial court’s order in these
appeals on the basis of untimeliness.
1
We note that the court reporter has filed a response to Appellant’s motion in this court. In her
response, the court reporter challenges Appellant’s claim of indigence and takes issue with various
statements made by Appellant’s attorney.
2
Because the trial court has not determined the merits of Appellant’s claim of
indigence and the court reporter’s contest, we will abate the appeal so that the trial
court, who is in the best position to make such determinations, may resolve those
issues. See McFatridge v. State, 309 S.W.3d 1 (Tex. Crim. App. 2010). We express
no opinion as to the merits of those issues, but we note that 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). An indigent appellant—one who “cannot pay or give
security for the appellate record”—must be furnished with a free appellate record.
TEX. R. APP. P. 20.2; Tuck v. State, 215 S.W.3d 411, 414 (Tex. Crim. App. 2007).
The determination of indigence is made on a case-by-case basis and is based upon
the appellant’s financial status at the time of the appeal. McFatridge, 309 S.W.3d
at 5; Tuck, 215 S.W.3d at 414–15. Additionally, in making an indigence
determination, a court is not to consider outside sources, such as relatives and
employers, unless they are legally bound to pay for the defendant’s appellate
expenses.2 Abdnor, 712 S.W.2d at 142. An appellant should not be deprived of a
free reporter’s record by the mere fact that he was represented by retained counsel
at trial. Id.The Court of Criminal Appeals has adopted a two-step process to guide courts
in making indigence determinations for purposes of a free record for appeal.
McFatridge, 309 S.W.3d at 6. First, the appellant must make a prima facie showing
of indigence. Id. If the appellant satisfies his initial burden of production, the burden
then shifts to the opponent to show that the appellant is not indigent. Id. Unless
2
We note that the court reporter indicates that “TMPA” may be bound to pay for the record, which
the court reporter estimates will cost approximately $7,000.
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there is some basis in the record to find the prima facie showing to be inaccurate or
untrue, the trial court should accept it as sufficient to find the appellant indigent. Id.Accordingly, we abate these appeals and direct the trial court to conduct a
hearing to determine the following:
1. Whether Appellant desires to prosecute his appeals;
2. Whether Appellant is indigent; and
3. Whether Appellant, if indigent, is entitled to a free appellate record.
The trial court is requested to make appropriate findings and recommendations. The
clerk of the trial court is directed to prepare and forward to this court supplemental
clerk’s records containing the findings, recommendations, and any orders of the trial
court. If it is determined that Appellant is not indigent and is not entitled to a free
reporter’s record, the court reporter is directed to prepare and forward to this court
the reporter’s record from the indigency hearing. The supplemental clerk’s records
and, if necessary, the reporter’s record from the indigency hearing are due to be filed
in this court on or before November 8, 2017.
PER CURIAM
October 19, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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