Order filed January 20, 2017




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-17-00008-CR
                                   __________

                          STEVEN CRUZ, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 50th District Court
                             Baylor County, Texas
                          Trial Court Cause No. 5627


                                    ORDER
      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 TEX. R.
APP. P. 20.2. The trial court conducted a hearing on the motion. Only one witness
testified at the hearing: Appellant.
        Appellant testified that he had been incarcerated since his conviction.
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. Appellant 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 court 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 him. At the close of Appellant’s trial,
the trial court 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 retain counsel for the appeal.
        At the conclusion of the hearing, the trial court acknowledged Appellant’s
testimony regarding his indigence, but it denied Appellant’s motion 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
        An indigent appellant—one who “cannot pay or give security for the appellate
record”—is entitled to a free appellate record. TEX. R. APP. P. 20.2; Tuck v. State,
215 S.W.3d 411, 414 (Tex. Crim. App. 2007). The determination of indigence is


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          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.
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made on a case-by-case basis and is based upon the appellant’s financial status 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. The Court 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 appellant must make
a prima facie showing of indigence. Id. Once the appellant satisfies his initial
burden of production, the burden then shifts to the State to show that the appellant
is not indigent. Id. Unless 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 making an indigence determination, outside sources, such as relatives and
employers, are not to be considered unless they are legally bound to pay for the
defendant’s appellate expenses. Abdnor v. State, 712 S.W.2d 136, 142 (Tex. Crim.
App. 1986). An 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, we may “uphold a trial court’s determination of non-indigence only if the
record contains evidence 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 Appellant’s family to raise money to hire attorneys to
represent him on appeal. See Abdnor, 712 S.W.2d at 142.




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      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 in this court—
free of charge to Appellant—on or before February 27, 2017.


                                                   PER CURIAM


January 20, 2017
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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