Order filed February 25, 2015




                                      In The


        Eleventh Court of Appeals
                                   ____________

                                No. 11-14-00280-CR
                                   ____________

                AARON JOSHUA CASTILLO, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                            Midland County, Texas
                        Trial Court Cause No. CR41986


                                    ORDER
      Appellant, Aaron Joshua Castillo, filed a notice of appeal from his
conviction. The clerk’s record and the reporter’s record were originally due to be
filed in this court on or before January 22, 2015. The documents on file in this
case reflect that, on October 9, 2014, court-appointed counsel for Appellant filed in
the trial court a motion for a free clerk’s record on appeal and a request that the
trial court enter an order for the preparation of the reporter’s record.         On
October 16, the trial court entered orders in which it granted Appellant’s requests
related to the clerk’s record and the reporter’s record. The docketing statement
filed in this court by the district clerk on October 21 reflects that Appellant had
been declared unable to pay costs on appeal. In December, Appellant retained
counsel, and this court permitted retained counsel to substitute for Appellant’s
court-appointed counsel. The district clerk and the court reporter subsequently
notified this court that the records were not being filed on January 22, 2015,
because Appellant had failed to pay for the records or make arrangements to pay
for the records. This court granted an extension, and Appellant filed a motion to
abate for findings concerning record payment and indigence. On February 17,
2015, the trial court reconsidered its October 16 rulings and, apparently without a
hearing, entered an order denying Appellant a free appellate record. In that order,
the trial court stated that Appellant “fired [his court-appointed attorney] and hired
his own attorney of his choosing and therefore is no longer considered indigent and
is not entitled to a free record of proceedings for appeal.” On February 19, 2015,
Appellant filed additional documents in the trial court: a declaration indicating that
he is currently incarcerated and an affidavit indicating that he is indigent. We
abate the appeal.
      An indigent criminal defendant has a constitutional right to a free appellate
record in a first appeal of right. See Griffin v. Illinois, 351 U.S. 12, 18–19 (1956);
Abdnor v. State, 712 S.W.2d 136, 139 (Tex. Crim. App. 1986). The determination
of indigence for this purpose is based upon the financial status of the appellant at
the time of the appeal, not the trial, and implicates the personal financial condition
of the appellant, not that of his parents or other relatives. Abdnor, 712 S.W.2d at
142. “Outside sources such as relatives . . . are not to be considered unless they are
legally bound to pay for defendant’s appellate expenses.” Id. (quoting Staten v.
State, 662 S.W.2d 672, 674 (Tex. App.—Houston [14th Dist.] 1983, no writ))
(internal quotation marks omitted). We note that, in the motion to abate filed in
this court, retained counsel stated that he had been hired by Appellant’s maternal
aunt. We abate the appeal so that the trial court, who is in the best position to
make such determinations, may resolve the issues surrounding Appellant’s asserted
indigence. See McFatridge v. State, 309 S.W.3d 1 (Tex. Crim. App. 2010).
      The trial court is directed to conduct a hearing on or before March 16, 2015,
to determine the following:
      1. Whether Appellant desires to prosecute his appeal;
      2. Whether Appellant is indigent; and
      3. If indigent, whether Appellant is entitled to a free appellate record.

      Appellant’s proof of indigence at the hearing may be had by affidavit alone.
See TEX. R. APP. P. 20.2; Abdnor, 712 S.W.2d at 142–43. If it is determined that
Appellant is indigent and is entitled to a free appellate record, the clerk’s record
and the reporter’s record from the trial are due for filing in this court immediately.
      The clerk of the trial court is directed to prepare and forward to this court a
supplemental clerk’s record containing the findings, recommendations, and any
orders of the trial court regarding Appellant’s indigence or the appointment of
counsel. The court reporter is directed to prepare and forward to this court the
reporter’s record from the hearing. These records are due to be filed in this court
on or before March 23, 2015.
      The appeal is abated.


                                                     PER CURIAM
February 25, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
