Motion granted and Abatement Order filed August 4, 2022.
In The
Fourteenth Court of Appeals
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NO. 14-22-00383-CR
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PATRICIA LYNN SWARTZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 20-CR-2075
ABATEMENT ORDER
Appellant appeals her conviction for possession of a controlled substance.
Appellant is represented by retained counsel on appeal and has filed a motion to
abate the appeal and remand for a determination of indigency. According to the
motion, on May 9, 2022, appellant filed an application requesting that the appellate
record be furnished at state expense. The trial court denied appellant’s application
in a May 11, 2022 order.1 There is no indication in the record before this court that
the trial court held a hearing on appellant’s application. We issue the following
order:
It is possible for a defendant to be indigent in the context of the record, but
not for appointment of counsel. See, e.g., Castillo v. State, 595 S.W.2d 552, 554
(Tex. Crim. App. 1980) (discussing entitlement to an appellate record for
defendants indigent at the time of appeal); Tex. Code Crim. Proc. Ann. art.
26.04(a) (discussing entitlement to counsel for indigent defendants) . Texas Rule of
Appellate Procedure 20.2 provides that a defendant, within the time for perfecting
an appeal, may request a free record by “motion and affidavit.” Tex. R. App. P.
20.2. For purposes of determining entitlement to a free record, a defendant is
considered indigent if they “cannot pay or give security” for the appellate record.
Id. Only sworn allegations are to be considered in determining whether a defendant
is entitled to a free record. Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim.
App. 2004). Rule 20.2 requires the court to conduct a hearing on the motion. Tex.
R. App. P. 20.2.
There is a two-step process for determining whether a defendant is indigent
for the purpose of obtaining a free record on appeal: (1) the defendant must make
a prima facie showing of indigence, and (2) when the prima facie showing is made,
the burden shifts to the State to show that the defendant is not in fact indigent.
Whitehead, 130 S.W.3d at 874. Once the defendant has made a prima facie
showing, we can uphold a trial court’s determination of non-indigence only if the
record contains evidence supporting such a determination. Id.
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The record before this court has not yet been supplemented with a copy of appellant’s
application or the trial court’s order denying the application.
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The legislature has specified the following list of factors for courts to
consider in determining whether a defendant is indigent: the defendant’s income,
source of income, assets, property owned, outstanding obligations, necessary
expenses, the number and ages of dependents, and spousal income, that is available
to the defendant. Tex. Code Crim. Proc. Ann. art. 26.04(m). The court may not
consider whether the defendant has posted or is capable of posting bail, except to
the extent that it reflects the defendant’s financial circumstances relative to these
factors. Id. These factors are relevant to the determination of indigence for both
appointment of counsel and for a free record. Whitehead, 130 S.W.3d at 878. The
legislature requires a defendant to fill out a questionnaire or answer questions
under oath, and leaves to the trial court the discretion to request supporting
documentation. Id. at 876 (providing such information to obtain the appellate
record); see also Tex. Code Crim. Proc. Ann. art. 26.04(n) (providing such
information for obtaining appointed counsel).
There is a less deferential standard of review in indigence determinations
than in other contexts where a defendant’s evidence may be disbelieved. Id. “The
trial court is not completely free to disbelieve the defendant’s allegations
concerning his own financial status, but the trial court may disbelieve an allegation
if there is a reasonable, articulable basis for doing so, either because there is
conflicting evidence or because the evidence submitted is in some manner suspect
or determined by the court to be inadequate.” Id.
Accordingly, we ORDER the trial court to hold a hearing on appellant’s
request for determination of indigency within 30 days of the date of this order.
The trial court shall see that a record of the hearing is made and shall order both
the trial court clerk and court reporter to prepare, certify, and file with the clerk of
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this court a clerk’s record and a reporter’s record of all relevant filings and orders
of the trial court, the testimony from the hearing, and any exhibits admitted at the
hearing. The records must be provided without charge to the appellant and filed
with this court within 45 days of the date of this order. Texas Rule of Appellate
Procedure 20.2 applies to this hearing.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
records on appellant’s claim of indigency and the hearing ordered to be conducted
by the trial court are filed in this court. The court will also consider an appropriate
motion to reinstate the appeal filed by any party.
PER CURIAM
Panel Consists of Justices Zimmerer, Spain, and Poissant.
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