Celestina Lynn Garcia v. State

Opinion

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.