O rder filed J anuary 20 , 2017



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 7

- 00 008

- CR

__________ STEVEN CRUZ , Appellant

V.
THE S TATE OF TEXAS , Appellee

On Appeal from the 50 t h District Court Bayl or County, Texas Tri al Court Cause No. 5627

O R D E R Steven Cruz has filed a notice of appeal from the trial court’s denial of his
motion for a free reporter’s record. In this order, we address the matter of Appellant’s indigence and the trial court’s denial of Appellant’s motion. Appellant was convicted of the offense of aggravated sexual assault of a child in September 2016 . On December 8, 2016, Appellant filed a motion in the trial court in which he requested a free reporter’s record for his appeal. See T EX

. R.2

A PP

. P. 20.2. The trial court con ducted a hearing on the motion. O nly one witness
testified at the hearing : App ellant. Appellant testified that he had been incarcerated since his convict ion

. Appellant testified that, at the time of the hearing, he was not employed and had no source of income whatsoever. He also testified that he owned no real property, stocks, bonds, or other assets. Appe llant indicated in a document that was admitted as an exhibit at the hearing that he was indigent, had no income, and had no way of paying for a reporter’s record or clerk’s record for his appeal.
The record indicates that the trial co urt appointed counsel to represent Appellant at trial because Appellant was indigent at that time. The trial court had permitted Appellant’s previously retained counsel to withdraw because that counsel
believed that Appellant could no longer afford hi m

. At the close of Appel lant’s trial,
the trial cour t appointed counsel for appeal. At some point prior to the filing of the motion for a free reporter’s record, Appellant had again obtained retained counsel

. Appellant testified that the attorneys representing him at the postconviction indigence hearing had been retained by Appellant’s family. Appellant was unaware
of how much money his family had paid to re tain counsel for the appeal. At the conclusion of the hearing, the tr ial court acknowledged Appellant’s testimony re garding his indigence, but it denied Appellant’s motio n for a free reporter’s record. The trial court stated that, because Appellant was “able to engage independent counsel,” he would have to pay for the cost of the reporter’s record. 1

A n indigent appel lan t

— one who “cannot pay or give security for the appellate
record ”

— is entitled to a free appellate record. T EX

. R. A PP

. P. 20.2; Tuck v. State
, 215 S.W.3d 411, 414 (Tex. Crim. App. 2007) . T he determination of indigenc e is

1 We note that attached to Appellant’s notice of appeal in this matter was an e

- mail from the court reporter to Appellant’s counsel . In that e

- mail, the court reporter estimated the cost of the reporter’s record to be $6,500, with an additional expense if a copy is supplied to the prosecutor.3

made on a case

- by

- case basis an d is based upon the appellant’s financial statu s at the time of the appeal

. McFatridge v. State , 309 S.W.3d 1, 5 (Tex. Crim. App. 2010) ; Tuck , 215 S.W.3d at 414

– 15. Th e C ourt of Criminal Appeals has adopted a two

step process to guide courts in making indigency determinations for purposes of a free record for appeal. McFatridge , 309 S.W.3d at 6. First, the appell ant must make

a prima facie showing of indigenc e

. Id. Once the appell ant satisfies his initial burden of production, the burden then shifts to t he State to show that the appell ant is not indigent. Id. U nless there is some basis in the record to find the prima facie showing to be inaccurate or untrue, the trial court should accept it as sufficient to
find the appellant indigent. Id.
In ma king an indigence determination, o utside sources
, such as relatives and employers
, are not to be considered unless they are legally bound to pay for the
defend ant’s appellate expenses. Abdnor v. State , 712 S.W.2d 136, 142 (Tex. Crim. App. 1986) . A n appellant should not be deprived of his right to a free reporter’s
record by the mere fact that he was represented by retained counsel at trial. Id. On appeal, w e may “ uphold a trial court ’ s determination of non

- indigence only if the
record contains ev idence supporting such a determination.” McFatridge , 309
S.W.3d at 6 (quoting Whitehead v. State , 130 S.W.3d 866, 874 (Tex. Crim. App. 2004)).
We conclude that the trial court abused its discretion when it determined that Appellant was not entitled to a free record. Appellant testified at trial and made a prima facie showing of indigence. The State did not meet its burden to show otherwise. Furthermore, the trial court based its ruling on considerations that were not appropriate: the ability of Appell ant’s family to raise money to hire attorneys to represent him on appeal. See Abdnor , 712 S.W.2d at 142.4

Consequently, we hold that Appellant is entitled to a free record on appeal. The clerk’s record and the reporter’s record are now due to be filed i n this court

— free of charge to Appellant

— on or before February 27 , 2017.

PER CURIAM

J anuary 20 , 2017 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Wright, C.J., Willson , J., and Bailey, J.