Juan Cota, Jr., Appellant v. The State of Texas, Appellee (2016)

ORDER DIRECTING FILING OF RECORD OF INDIGENCY HEARING

Appellant, Juan Cota, Jr., filed a timely notice of appeal from his conviction for aggravated sexual assault for which he received a thirty-five year sentence.  According to the limited documents before this court, when Appellant filed his notice of appeal, he also filed an Affidavit of Indigence with a request for a free clerk's record and reporter's record.  See Tex.R.App. P. 20.2 (describing procedure for an appellant to request an appellate record without charge).  Appellant's affidavit recites that he has no dependents, is unemployed, and has no income.  An entry in the trial court's criminal docket sheet reflects that a hearing was held on the issue of Appellant's indigence.  Although no order from that hearing has been filed in this court, the docket sheet contains an entry providing “there were assets that weren't listed” in the affidavit.  The entry continues, “[h]e was told the county would not pay his appeal expenses at this time.” ¹

Appellant's counsel ² has now filed a Notice of Appeal of Denial of Motion for Record on Appeal to be Provided at County Expense and designations for preparation of the clerk's record and reporter's record of the hearing resulting in the denial of Appellant's request for a free record.

A determination that an appellant is not entitled to a free record may be reviewed on appeal.  Hicks v. State, 544 S.W.2d 424, 425 (Tex.Crim.App.1976).  If a trial court finds that an appellant is not indigent, a sufficient record of the hearing on indigency must be made for appellate purposes to determine whether the trial court abused its discretion.  Id. The trial court is obligated to furnish a record of the indigency hearing at no cost to an appellant for purposes of appellate review.  Castillo v. State, 595 S.W.2d 552, 554 (Tex.Crim.App.1980).

Appellant has challenged the trial court's finding that he is not indigent and therefore, not entitled to a free appellate record.  Accordingly, the trial court clerk and court reporter are ordered to prepare and file in this court that portion of the appellate record pertaining to the hearing held on June 2, 2016, on Appellant's Affidavit of Indigence on or before July 8, 2016.

It is so ordered.

FOOTNOTES

1.   A docket sheet entry cannot take the place of a written order or judgment.  Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex.1995).

2.   It is unclear at this time whether appellate counsel is retained as indicated in the trial court clerk's Criminal Information Form or whether he is providing his services to Appellant pro bono.

Per Curiam