Lopez v. State , 1987 Tex. App. LEXIS 8818 ( 1987 )

ORDER

PER CURIAM.

Appellant was convicted of possessing a controlled substance. Written notice of appeal was timely given. Pursuant to Tex.R. App.P. 53(j)(2), appellant requested that the trial court provide him with a free statement of facts. At a hearing, the trial court found the appellant was not indigent and denied his request.

Appellant then requested a free copy of the statement of facts from the indigency hearing. This request was also denied. Appellant filed, in this Court, a “Motion to Abate the Appeal and Instruct Trial Court to Furnish Appellant Transcription of Indi-gency Hearing.” We granted the motion in our order delivered April 9,1987. Appellant has obtained the transcription of his indigency hearing.

Appellant now challenges the trial court’s finding of non-indigency and seeks to have the court provide him with a free statement of facts from the trial.

A defendant is entitled to have an appellate court review the trial court’s adverse determination on the defendant’s pauper affidavit in which a free record is requested for appeal. Hicks v. State, 544 S.W.2d 424 (Tex.Crim.App.1976).

An examination of the record reveals that: 1) appellant diligently sought a record on appeal at government expense; 2) he established a prima facie case of entitlement to such a record through his hearing testimony regarding a lack of financial resources; and 3) the State failed to rebut this prima facie case. The State now concedes that appellant should receive a free statement of facts for his appeal.

Appellant’s request for a statement of facts from the trial is granted. See Abdnor v. State, 712 S.W.2d 136 (Tex.Crim.App.1986). The trial court is instructed to have the court reporter prepare a statement of facts at no cost to appellant. It is hereby ORDERED that the statement of facts be filed with this Court on or before January 21, 1988.