Celestina Lynn Garcia v. State

NUMBER 13-17-00460-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CELESTINA LYNN GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
ORDER
Before Chief Justice Valdez and Justices Contreras and Benavides
Order Per Curiam
Appellant, Celestina Lynn Garcia, appeals her conviction for tampering with or
fabricating physical evidence. The reporter’s record was originally due on September
18, 2017. On January 3, 2018, the court reporter notified this Court that appellant failed
to make arrangements for payment of the reporter’s record. In accordance with Texas
Rule of Appellate Procedure 37.3(c), this Court notified counsel that unless the defect
was cured, the Court would consider and decide those issues or points that do not require
a reporter’s record for a decision. See TEX. R. APP. P. 37.3. Appellant’s counsel has
responded that appellant is indigent and entitled to a free appellate record. Counsel
states that he was retained and paid by appellant’s mother, and there has been no
material change in appellant’s financial status after she was deemed indigent.
The clerk’s record reflects appellant was appointed counsel to represent her at
trial. A supplemental reporter’s record contains appellant’s motion for a free record on
appeal filed with the district clerk on November 9, 2017. The trial court signed an order
denying the request on November 15, 2017. According to appellant’s counsel, the
motion was denied without explanation or a hearing.
In criminal cases, an appellant “who is unable to pay for the appellate record may,
by motion or affidavit, ask the trial court to have the appellate record furnished without
charge.” TEX. R. APP. P. 20.2. “If after hearing the motion the court finds that the
appellant cannot pay or give security for the appellate record, the court must order the
reporter to transcribe the proceedings.” Id. The Texas Code of Criminal Procedure
permits reconsideration of the issue of a defendant’s indigency if there is a material
change in financial circumstances. If there is a material change in financial
circumstances after a determination of indigency is made, the defendant, the defendant's
counsel, or the attorney representing the state may move for reconsideration of the
determination. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p).
The record before us does not indicate whether appellant is indigent. Accordingly,
we ABATE this appeal and REMAND the cause to the trial court for further proceedings.
Upon remand, the trial court shall cause notice of a hearing to be given and, thereafter,
conduct a hearing to determine appellant’s indigence for purposes of payment of the
reporter’s record.
The trial court shall cause its findings and recommendations, together with any
orders it may enter regarding the aforementioned issues, to be included in a supplemental
clerk's record and shall cause a supplemental reporter's record of any proceedings to be
prepared. The supplemental clerk's record and reporter's record, if any, shall be filed
with the Clerk of this Court on or before the expiration thirty days from the date of this
order.
PER CURIAM
Delivered and filed the
12th day of January, 2018.