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                                               OPINION

                                          No. 04-09-00126-CV

                                IN THE INTEREST OF T.C. and J.C.

                      From the 225th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-PA-01834
                         Honorable Charles E. Montemayor, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 31, 2009

RECORD ORDERED

           This is an appeal from the trial court’s order terminating appellant’s parental rights. After

the trial court signed the termination order, appellant filed a Motion for New Trial and Statement of

Appellate Points, in which appellant challenged the legal and factual sufficiency of the evidence in

support of the findings on which the termination order was based. Following a hearing on the

motion, the trial court denied the motion for new trial, sustained appellant’s affidavit of indigence,

and ruled that the appeal was frivolous. On appeal to this court, appellant again challenges the

sufficiency of the evidence, as well as asserting he did not receive effective assistance of counsel.
                                                                                                       04-09-00126-CV

         We review a trial court’s determination that an appeal is frivolous under an abuse of

discretion standard. In re M.R.J.M., 193 S.W.3d 670, 673 (Tex. App.—Fort Worth 2006, no pet.)

(en banc). After reviewing the record from the new trial hearing, we are unable to determine whether

the trial court acted within its discretion from that record alone. Therefore, we conclude a review

of the reporter’s record from the termination proceeding is necessary to determine whether the trial

court abused its discretion. See In re D.M., No. 04-08-00264-CV, 2008 WL 4500310, at *2 n.2

(Tex. App.—San Antonio Oct. 8, 2008, no pet.); In re M.R.J.M., 193 S.W.3d at 675-76; In re S.T.,

242 S.W.3d 923, 925 (Tex. App.—Waco 2008, no pet.); M.C. v. Tex. Dep’t of Family & Prot. Servs.,

No. 08-08-00053-CV, 2008 WL 5175879, at *1 (Tex. App.— El Paso Dec. 11, 2008, no pet.). But

see In re R.C.R., No. 14-08-00904-CV, 2009 WL 997514, at *3 n.4 (Tex. App.—Houston [14th

Dist.] 2009, no pet.); In re A.S., 239 S.W.3d 390, 391-93 (Tex. App.—Beaumont 2007, no pet.).

         Accordingly, it is ORDERED that the court reporters shall, on or before thirty (30) days from

the date of this opinion and order, and without cost to the appellant, prepare and file reporter’s

records containing all of the evidence admitted at the termination trial.1



                                                                 Sandee Bryan Marion, Justice




         1
          … See T EX . R. A PP . P. 34.6(d). This order does not require the court reporters to prepare reporter’s
records of any nonevidentiary portions of the trial, such as pretrial hearings, voir dire, closing arguments, and
postjudgment proceedings.



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