Rocky Rick Castro v. State ( 2014 )

Order filed August 29, 2014
In The
Eleventh Court of Appeals
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No. 11-14-00095-CR
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ROCKY RICK CASTRO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 13-7305
ORDER
Appellant, Rocky Rick Castro, timely filed a pro se notice of appeal from his
convictions for the offenses of continuous sexual abuse of a young child and
indecency with a child. The clerk’s record and the reporter’s record are now past
due. On July 25, 2014, Appellant filed the following documents in the district
clerk’s office: a request to prepare the clerk’s record and the reporter’s record and a
designation of record on appeal. In both the request and the designation, Appellant
indicated that he was indigent. We abate the appeal.
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. We note that
Appellant was represented by retained counsel at trial but that Appellant’s trial
counsel has not been retained to represent Appellant in this appeal. However, 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 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 September 30,
2014, 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.
In the interest of judicial economy and to avoid the necessity of a second
abatement in the future, the trial court is also directed to address the issue of
appellate counsel and determine the following:
1. Whether Appellant has retained counsel for this appeal; and
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2. If Appellant is indigent, whether he desires to have counsel appointed to
represent him in this appeal or whether, after being warned of the dangers
and disadvantages of self-representation, he competently and intelligently
chooses to exercise the right to represent himself.
See Faretta v. California, 422 U.S. 806 (1975).
The trial court is requested to make appropriate findings and
recommendations and to appoint counsel if appropriate. Appellant’s proof of
indigence at the hearing may be had by affidavit alone. See TEX. R. APP. P. 20.2;
Abdnor, 712 S.W.2d at 142–43. 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 immediately.
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 or the appointment of
counsel. The court reporter is directed to prepare and forward to this court the
reporter’s record from the hearing. These records are due to be filed in this court
on or before September 30, 2014.
The appeal is abated.
PER CURIAM
August 29, 2014
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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