Juan Cota, Jr. v. State ( 2016 )

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.
3