Christian Lozano v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 19, 2023
• Docket: 03-23-00660-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00660-CR

Christian Lozano, Appellant

v.

The State of Texas, Appellee

FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY, NO. D-1-DC-23-904023, BRANDY MUELLER, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

Appellant Christian Lozano was deemed indigent and appointed counsel prior to

trial. See Tex. Code Crim. Proc. art. 26.04(a), (p); see also Tex. R. App. P. 20.1(b)(1)

(explaining that indigency determination in trial court generally carries forward on appeal).

However, Lozano subsequently moved to substitute his appointed counsel with a retained

counsel, and the retained counsel represented Lozano throughout the trial and filed a notice of

appeal on Lozano’s behalf. After the notice of appeal was filed, the clerk of this Court sent

Lozano’s counsel notice that the reporter’s record was overdue. In response, Lozano’s counsel

filed a motion seeking an extension of time to file the reporter’s record. In the motion, counsel

explains that it will be necessary to have new appellate counsel appointed because Lozano is

indigent and cannot afford to pay counsel for any additional legal work or for the preparation of

the reporter’s record. Further, counsel relates that Lozano wishes to have new appellate counsel

appointed to represent him in this appeal. In criminal proceedings, an indigent defendant is entitled to have an attorney

appointed to represent him on appeal. Tex. Code Crim. Proc. art. 1.051(d)(1). Additionally, an

indigent defendant is entitled to a free record on appeal. See Tex. R. App. P. 20.2. And it is the

trial court that must determine whether Lozano is indigent. See Tex. Code Crim. Proc. art.

26.04(b); Tex. R. App. P. 20.2. Accordingly, under these circumstances, we abate the appeal and

remand the cause to the trial court to determine whether Lozano is indigent and, if so, whether he

desires to have appellate counsel appointed to represent him in this matter. See Tex. R. App. P.

37.3(a)(2). If Lozano wishes to have counsel appointed and is indigent, the trial court should

make appropriate orders to ensure that he is adequately represented on appeal. See Mediano v.

State, No. 03-16-00211-CR, 2016 WL 6576873, at *1 (Tex. App.—Austin Nov. 4, 2016, order)

(mem. op., not designated for publication) (abating and remanding case where trial court initially

determined defendant was indigent and appointed him counsel before defendant retained counsel

and where retained counsel later requested to withdraw as counsel on appeal). After making

these determinations and orders, the trial court should order the appropriate supplementary

clerk’s record and reporter’s record (if any) to be prepared and forwarded to this Court no later

than January 16, 2024.

It is ordered on December 19, 2023.

Before Justices Baker, Triana, and Smith

Abated and Remanded

Filed: December 19, 2023

Do Not Publish