Santos Guevara v. State

The State

Fourth Court of Appeals San Antonio, Texas May 30, 2014

No. 04-14-00303-CR

Santos GUEVARA, Appellant

v.

The STATE of Texas, Appellee

From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 5336 Honorable N. Keith Williams, Judge Presiding

ORDER The record in this appeal was due May 12, 2014, but has not been filed. The court reporter filed a notification of late record stating the record was not filed because appellant Santos Guevara Jr. had neither requested nor paid for the record. In response, appellant’s attorney has filed a motion for a free appellate record. The motion is supported by the affidavit of appellant’s wife and states that it was served on both the trial court clerk and the court reporter.

Rule 20.2 of the Rules of Appellate Procedure requires that a motion for a free appellate record in a criminal appeal be filed “[w]ithin the time for perfecting the appeal.” This time has passed. Nevertheless, in the interest of justice and to expedite a decision in the case, we apply Rule 2 of the Texas Rules of Appellate Procedure to allow the late motion and affidavit of indigence. See TEX. R. APP. P. 2; Turner v. State, 71 S.W.3d 928 (Tex. App.—Waco 2002, no pet.).

We abate this appeal and remand the cause to the trial court. We order the trial court to hold a hearing on or before June 20, 2014, to determine whether appellant is able to pay for the appellate record. See TEX. R. APP. P. 20.2. The trial court must allow appellant to present evidence, telephonically or otherwise, to sustain his assertion of indigence. The court must further give notice of the date and time of the hearing to the trial court clerk, court reporter, and the State.

If the trial court finds Guevara is indigent, the trial court is ordered to direct the Gillespie County District Clerk and the court reporter to prepare the appellate record without charge to

appellant and to file the record within thirty days of the date of the hearing. The trial court may also, if requested, appoint appellate counsel.

We further order the trial court to make findings of fact and conclusions of law on the issue of Guevara’s indigence, to direct the clerk to file them in this court, and to direct the court reporter to prepare and file a record of the indigence hearing. The findings and conclusions and record of the hearing are due in this court within five days of the hearing.

We order the clerk of this court to send copies of this order, to the trial court, the clerk, and court reporter.

_________________________________ Luz Elena D. Chapa, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 30th day of May, 2014.

___________________________________ Keith E. Hottle Clerk of Court