                           NO. 07-09-0331-CR, 07-09-0385-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                DECEMBER 18, 2009
                          ______________________________

                            HAROLD ERIC HAM, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

               FROM THE 100TH DISTRICT COURT OF HALL COUNTY;

                  NO. 3477; HONORABLE STUART MESSER, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                          ORDER


       Appellant Harold Eric Ham filed a notice of appeal on October 8, 2009, challenging

his conviction and sentence in the underlying case. The appeal was assigned case

number 07-09-0331-CR. On December 3, the clerk of the trial court filed in this Court a

request for extension of time to file the clerk’s record on the ground that on November 19,

the trial court determined that appellant was not indigent. Appellant filed a notice of appeal

on November 19, challenging the trial court’s “indigency determination.” The notice was

filed in this Court on December 3, and assigned case number 07-09-0385-CR.
       An appeal from an order denying a Rule 20.21 motion for a record at State expense

is ancillary to the appeal challenging a judgment of conviction and punishment. See In the

Matter of the Marriage of Gary, No. 07-01-0466-CV, 2002 Tex. App. Lexis 5749, at *7

(Tex.App.–Amarillo August 7, 2002, order) (civil case proceeding under Rule 20.1). A

separate notice of appeal challenging an order denying an indigence determination in the

case is not necessary. Id.; Ramirez v. State, Nos. 04-00-00031-CR, 04-00-00037-CR, and

04-00-00199-CR, 2000 WL 794157, at *1 (Tex.App.–San Antonio June 21, 2000, order)

(not designated for publication) (stating separate notice of appeal is not required to obtain

review of a trial court order denying a record at State expense). Accordingly, on our own

initiative, we will dismiss appellate cause number 07-09-0385-CR as moot, and address

appellant’s indigence in number 07-09-0331-CR.


       Cause number 07-09-0331-CR is abated with the following exception and

instructions. Pursuant to Rule 34.5(c)(1), the clerk of the trial court is directed to prepare

a record containing the motion and affidavit filed by appellant requesting a record at State

expense, the order of the trial court ruling on the motion, any findings of fact and

conclusions of law pertaining to the motion or the alleged indigence of appellant, and any

other documents pertaining to the alleged indigence of appellant. Pursuant to Rule

34.6(d), the court reporter is directed to prepare a reporter’s record of all hearings

addressing appellant’s motion for a record at State expense or claimed indigence. See In

re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998) (orig. proceeding) (appellate court may on its

own initiative apply Rules 34.5(c)(1) and 34.6(d) to obtain preparation by clerk and court


       1
           Tex. R. App. P. 20.2.

                                              2
reporter of portions of record necessary to review order denying indigence status); Tex. R.

App. P. 34.5, 34.6.

       The clerk’s record and reporter’s record prepared according to this order shall be

filed with the clerk of this Court no later than January 8, 2010. Within thirty days from the

date the clerk’s and reporter’s records we have ordered both are filed, appellant shall file

a brief with the clerk of this Court addressing his contention the trial court erred in denying

his request for a record at State expense. The State’s brief in response to appellant’s brief

shall be due thirty days from the date appellant’s brief is filed. The abatement shall

otherwise remain until further order of this Court.


       The appeal pending as number 07-09-0385-CR is dismissed. The Court’s previous

instruction to appellant to file a docketing statement in 07-09-0385-CR is vacated.


       It is so ordered.


                                                          Per Curiam




Publish.




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