Khaliq Mehmood v. State

• Court: Court of Appeals of Texas
• Decided: March 19, 2013
• Docket: 07-12-00309-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-0064-CV ________________________

BENJAMIN ALLEN BENGE, APPELLANT

VS.

ROBERT N. HARRIS AND KARI L. IMLER-HARRIS, APPELLEES

On Appeal from the 69TH District Court Sherman County, Texas Trial Court Cause No. 5035, Honorable Ron Enns, Judge Presiding

March 19, 2013

ORDER OF ABATEMENT AND REMAND Before Quinn, C.J., and Campbell and Pirtle, JJ.

On May 11, 2012, Appellees, Robert N. Harris and Kari L. Imler-Harris, filed a

petition to terminate the parental rights of Appellant, Benjamin Allen Benge, to his child,

A.M.I-H. 1 On October 23, 2012, the trial court signed an Order of Termination, and on

1 To protect the child=s privacy, we refer to her by her initials. See TEX. FAM. CODE ANN. ' 109.002(d) (W EST SUPP. 2012). November 13, 2012, Appellant timely filed a Notice of Appeal. 2 The filing of a notice of

appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial

court’s judgment or order appealed from. TEX. R. APP. P. 25.1(b).

Appeals in parental termination cases are governed by the rules of appellate

procedure for accelerated appeals. TEX. R. APP. P. 28.4(a)(1). In an accelerated

appeal, the appellate record, including the reporter’s record, is due within 10 days after

the judgment being appealed is signed. TEX. R. APP. P. 35.1(b). Where a reporter

requests an extension of time to file the reporter’s record, the extension or cumulative

extensions granted must not exceed 30 days, absent extraordinary circumstances. TEX.

R. APP. P. 28.4(b)(2). Furthermore, the restrictions on preparation of a reporter’s record

found in section 13.003 of the Texas Civil Practice and Remedies Code do not apply to

an appeal from a parental termination case. TEX. R. APP. P. 28.4(b)(3).

Pending before this Court is the affidavit of Shelly C. Burnett, Official Court

Reporter of the 69th District Court, wherein she alleges that she is unable to file the

reporter’s record in the above-styled and numbered cause because Appellant has not

paid or made arrangements to pay for the record. She further alleges that she filed a

Contest of Affidavit of Inability to Pay Costs on March 5, 2013. From the clerk’s record

already filed we note that Appellant has filed affidavits of indigency in this proceeding on

four separate occasions: August 21, 2012, January 4, 2013, January 30, 2013, and

February 8, 2013. Even if Ms. Burnett’s contest were to be meritorious, it would have

been subject to denial as untimely. See TEX. R. APP. P. 20.1(e) (providing that a contest

2 The deadline for filing the notice of appeal was Monday, November 12, 2012. However, that date was a legal holiday and the deadline was extended to November 13, 2012. TEX. R. APP. P. 4.1(a).

2 to indigence must be filed within 10 days after the date when the affidavit of indigency

was filed in the trial court). Unless a contest is timely filed, an affidavit of indigency shall

be deemed true, and the party allowed to proceed without the advancement of costs.

TEX. R. APP. P. 20.1(f).

Because the reporter’s record is currently past due and any extension this Court

could grant pursuant to Rule 28.4(b)(2) would have already elapsed, we abate this

appeal and remand the cause to the trial court for further proceedings. Upon remand,

the trial court is directed to use whatever means available to determine whether

Appellant is entitled to a free reporter’s record and, if so, to ensure the filing of the

appellate record on or before April 2, 2013, by ordering the court reporter to immediately

commence preparation of the reporter’s record and, if necessary, by making

arrangements for a substitute reporter. See TEX. R. APP. P. 28.4(b).

Upon the filing of the reporter’s record, Ms. Burnett is ordered to notify the trial

court, in writing, of the filing. Should Ms. Burnett timely file the reporter’s record in

accordance with the order of the court, the trial court need not take any further action

other than to cause a supplemental clerk’s record to be filed with the Clerk of this Court

by April 9, 2013, containing the court’s order and the reporter’s notice.

Should the trial court find Appellant not to be entitled to a free reporter’s record,

then the court shall file findings of fact and conclusions of law supporting that decision

on or before April 2, 2013, and cause a supplemental clerk’s record to be filed with the

clerk of this Court by April 9, 2013, containing those findings and conclusions.

3 It is so ordered.

Per Curiam