Juan Cota, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: June 22, 2016
• Docket: 07-16-00218-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-16-00218-CR ________________________

JUAN COTA, JR., APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No.CR-16B-026; Honorable Roland Saul, Presiding

June 22, 2016

ORDER DIRECTING FILING OF RECORD OF INDIGENCY HEARING Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

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 counsel2 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 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.

2 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.

Per Curiam

Do not publish.