### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00236- CR

Jonathon M. P rice , Appellan t

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F WI LLIAM SO N COUNTY NO. 12- 0608 7-1 , TH E H ONO RAB LE MI CKEY RAY P ENNINGTON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

P ER CURIUM

A jury convicted J onathon M. Price of the offe nse of riding in a passeng er vehicle while not secur ed by a safe ty belt, a class C misdemeanor. See Tex. Transp. Code § 545.413(a) (1). After filing his notice of appea l, Price reque sted a fre e rec ord for appea l. The trial court denied the reque st afte r conducting a hearing on indige ncy . Price subsequently fi l ed a m o t i o n with the trial court reque sting a rehe aring on the matter of his indige nce. Documents in the rec ord ref lect that the trial court declined to conduct a rehe aring or rule on his subsequent reque st for a fre e rec ord beca use it lacke d the jurisdiction to do so. Price has now filed a motion in this Court asking us to direc t the trial court to conduct a hearing on his subsequent motion reque sting a fre e rec ord. Price asser ts that his financial circ umstances have chang ed since the tria l court’s orig inal deter mination that he was not indigent, includingthe fa ct that he is no long er e mploy ed.The question of i n d i gen ce is subject t o rec onsideration if the defendant’s financial

status chang es. See W

hitehead v. State , 130 S.W .3d 866, 876 (Tex. Crim. App. 2004); McFatridge

v. State , 317 S.W .3d 514, 515-16 (Tex. App.—Waco 2010, order) (per curium), aff’d on merits , No. 10-08-00049- CR, 2011 WL 1334400, at *5 (Tex. App.—Waco Apr. 6, 2011, pet. ref ’d) (mem. op., not desig nated for publication); s ee a l s o Tex. Code Crim. Proc. art. 26.04(p) (“I f there is a materia l chang e in financ ial circu m s t an ces afte r a deter mination of indige ncy or nonindige ncy is made, the defe ndant

. . . may move for rec onsideration of the deter mination.”); Snoke v. State , 7 8 0 S .W.2d 210, 214 (Tex. Crim. App. 1989) (re cognizi ng possibili ty that appellant’ s finan ci al situation may chang e due to passag e of time). Thus, Price is entitled to a hearing to deter mine whether he is curr ently

indige nt and entitled to a fr ee r ecor d for a ppeal. 1 There fore , we abate the appea l and rema nd this cause to the trial court to deter mine whether or not Price is entitled to a fre e rec ord based on his chang e in financ ial circ umstances. The trial court shall (1) conduct the hearing within 30 day s afte r the date of this opinion; (2) prepa re any

nece ssary finding s of fact and conclusions of law; and (3) s i gn a written order consistent with the require ments of this opinion. The c ounty cler k shall file a suppleme ntal cler k’s re cord c ontaining

a copy of (1) the trial court’s finding s of fac t and conclusions of law, if any , and (2) the trial court’s order with the Clerk of this Court within 45 day s after the date of

this opinion. The c ourt repor ter

Price also reque sts t h at t h e trial court deter mine whether he is elig ible for appointed 1 counsel for the appea l. Howeve r, we note that Price is not entitled to appointed counsel since he was not char g ed wi t h a m i s d emea nor punishable by confine ment. See Tex. Crim. Proc. Code art. 26.04(b)( 3). 2shall file a supplemental repor ter’s rec ord of the indige nce hearing within 45 day s afte r the date of this opini on. Reg ardles s of how the t rial court resolves Price’s indi g ence claim and unless there is an appea l on the indige nce deter mination, the repor

ter’s rec ord from the trial on the merits is due within 30 day s afte r the trial court signs the order g ranting or denying Price’s subsequent motion for a fr ee r eporte r’s re cord.

Be fore J ustices Puryear , Rose and Goodwin Abated Filed: August 15, 2013 Do Not Publish

3