in Re Eara John Nelson

Opinion

In re Eara John Nelson

IN THE

TENTH COURT OF APPEALS

No. 10-99-023-CR

IN RE EARA JOHN NELSON

ORIGINAL PROCEEDING

OPINION ON MOTION FOR REHEARING

      Eara Nelson was convicted of indecency with a child and placed on probation. When his probation was revoked, he gave written notice of appeal and asked the trial court to provide a free reporter’s record for the appeal. See Tex. R. App. P. 20. The court denied his request and he brought a mandamus proceeding seeking to challenge the court’s order denying him a free record. Id. His request for mandamus relief was denied because an appellant may not challenge a court’s denial of indigency status by petition for writ of mandamus. See Abdnor v. Ovard, 653 S.W.2d 793, 794 (Tex. Crim. App. 1983); Hendren v. Paxson, 951 S.W.2d 496, 497 (Tex. App.—El Paso 1997, no pet.). We noted that it may be challenged by direct appeal.

      On March 16, Nelson filed what we interpret to be a motion for rehearing. He complains that this issue cannot be raised on direct appeal because he cannot properly brief the issue without a record.

      There are a number of cases where the appellant brought this very complaint on direct appeal. See, e.g., Rosales v. State, 748 S.W.2d 451 (Tex. Crim. App. 1987); Harper v. State, 850 S.W.2d 736 (Tex. App.—Amarillo 1993, pet. ref’d); Skidmore v. State, 808 S.W.2d 708 (Tex. App.—Texarkana 1991, no pet.). Thus, this complaint should be brought on direct appeal. If successful, the cause will be remanded and the appellant will have an opportunity to obtain the record and file a new brief with substantive complaints.

      The motion for rehearing is denied.

                                                                       PER CURIUM                              

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Motion denied

Opinion delivered and filed March 31, 1999

Do not publish

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