Billy Edward Gonzalez v. State

Opinion

The State of TexasAppellee/s

Fourth Court of Appeals San Antonio, Texas March 11, 2014

No. 04-14-00136-CR

Billy Edward GONZALEZ, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 381st Judicial District Court, Starr County, Texas Trial Court No. 12-CR-611 Honorable Jose Luis Garza, Judge Presiding

ORDER The clerk’s record was due December 30, 2014. 1 On March 3, 2014, we issued a letter to

the district clerk of Starr County, Mr. Eloy R. Garcia, advising him that the record was overdue.

We further advised the clerk that if the record had not been filed because appellant has failed to

pay for the record and is not entitled to appeal without paying the fee, the clerk must filed a

notification of late record within ten days of the date of the letter. Otherwise, the record was due

within thirty days of the date of the letter.

On March 5, 2014, in response to our letter, the clerk filed a notification of late record

stating appellant has failed to pay for the record and is not entitled to appeal without paying the

fee. However, our records indicate appellant had appointed trial counsel and appointed counsel

has not withdrawn and is thereby presumed to still represent appellant on appeal.

1 The notice of appeal was not received in this court until February 27, 2014. Under Texas law, criminal defendants are not entitled to court-appointed counsel unless

they are indigent. See TEX. CODE CRIM. PROC. art. 26.04. Thus, appellant was clearly indigent

at trial. Once appellant was found indigent, he is presumed to have remained indigent for the

remainder of the proceedings, including appeal, absent a factual determination of a material

change in his financial circumstances. See Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App.

2013); TEX. CODE CRIM. PROC. art. 26.04(p).

Our records do not indicate, nor have we been advised of any finding by the trial court,

that appellant’s financial circumstances have changed. Accordingly, appellant is presumed

indigent and the clerk may not refuse to file the clerk’s record because appellant has not paid for

the record; appellant is entitled to a free record on appeal.

We therefore DENY the district clerk’s notification of late record and ORDER the

district clerk to file a proper notification of late record on or before March 17, 2014, or file the

clerk’s record in this court on or before April 2, 2014.

We order the clerk of this court to serve a copy of this order on all counsel, the district

clerk, the court reporter, and the trial court.

_________________________________ Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of March, 2014.

___________________________________ Keith E. Hottle Clerk of Court