Jesus De La Cruz Herrera v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Nos. 06-18-00111-CR & 06-18-00112-CR

JESUS DE LA CRUZ HERRERA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court Nos. 27278 & 27560

Before Morriss, C.J., Moseley and Burgess, JJ. ORDER

The clerk’s and reporter’s records were originally due to be filed in the referenced matters

on July 30, 2018. The clerk’s record was filed by that deadline, but the reporter has been granted

two extensions of the filing deadline because she indicated that the appellant had not made

acceptable payment arrangements for preparation of the reporter’s record. See TEX. R. APP. P.

35.3(b)(3). Appellant’s retained attorney has informed this Court that Appellant is indigent for

purposes of a free record on appeal, and counsel indicates that he is in the process of preparing and

filing a motion in the trial court for purposes of seeking the reporter’s record at no cost to his client.

“Whether an appellant is indigent for the purposes of appointment of counsel and obtaining

a free appellate record are discrete inquiries and should be resolved by the trial court.” Goley v.

State, Nos. 07-18-00145-CR & 07-18-00302-CR, 2018 WL 3766796, at *1 (Tex. App.—Amarillo

Aug. 8, 2018, order) (not designated for publication) (citing McFatridge v. State, 309 S.W.3d 1,

5–6 (Tex. Crim. App. 2010)). “Each indigence determination is made at the time the issue arises.”

Id.

To avoid further delays in this matter and to protect the rights of the parties, we hereby

abate this matter to the trial court with instructions to determine, following a hearing, if necessary,

whether appellant is unable to pay for the record and is entitled to have the record furnished without

charge. See generally TEX. R. APP. P. 20.2. To pursue his claim that he is entitled to a free

appellate record, Herrera must file an affidavit of indigence with the trial court. If the trial court

finds that Herrera cannot pay for the record, it shall order the preparation of the reporter’s record

at no cost to Herrera.

2 A supplemental clerk’s record including copies of any findings, conclusions, and orders,

as well as the reporter’s record of any hearing that is held, shall be filed with this Court no later

than October 2, 2018.

All appellate timetables are stayed and will resume on our receipt of the supplemental

record(s) contemplated by this order.

IT IS SO ORDERED.

BY THE COURT

Date: September 13, 2018