Santos Guevara v. State

The State
Fourth Court of Appeals
San Antonio, Texas
May 30, 2014
No. 04-14-00303-CR
Santos GUEVARA,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 5336
Honorable N. Keith Williams, Judge Presiding
ORDER
The record in this appeal was due May 12, 2014, but has not been filed. The court
reporter filed a notification of late record stating the record was not filed because appellant
Santos Guevara Jr. had neither requested nor paid for the record. In response, appellant’s
attorney has filed a motion for a free appellate record. The motion is supported by the affidavit
of appellant’s wife and states that it was served on both the trial court clerk and the court
reporter.
Rule 20.2 of the Rules of Appellate Procedure requires that a motion for a free appellate
record in a criminal appeal be filed “[w]ithin the time for perfecting the appeal.” This time has
passed. Nevertheless, in the interest of justice and to expedite a decision in the case, we apply
Rule 2 of the Texas Rules of Appellate Procedure to allow the late motion and affidavit of
indigence. See TEX. R. APP. P. 2; Turner v. State, 71 S.W.3d 928 (Tex. App.—Waco 2002, no
pet.).
We abate this appeal and remand the cause to the trial court. We order the trial court to
hold a hearing on or before June 20, 2014, to determine whether appellant is able to pay for the
appellate record. See TEX. R. APP. P. 20.2. The trial court must allow appellant to present
evidence, telephonically or otherwise, to sustain his assertion of indigence. The court must
further give notice of the date and time of the hearing to the trial court clerk, court reporter, and
the State.
If the trial court finds Guevara is indigent, the trial court is ordered to direct the Gillespie
County District Clerk and the court reporter to prepare the appellate record without charge to
appellant and to file the record within thirty days of the date of the hearing. The trial court may
also, if requested, appoint appellate counsel.
We further order the trial court to make findings of fact and conclusions of law on the
issue of Guevara’s indigence, to direct the clerk to file them in this court, and to direct the court
reporter to prepare and file a record of the indigence hearing. The findings and conclusions and
record of the hearing are due in this court within five days of the hearing.
We order the clerk of this court to send copies of this order, to the trial court, the clerk,
and court reporter.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 30th day of May, 2014.
___________________________________
Keith E. Hottle
Clerk of Court