      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-99-00439-CR




                                   Michael Thomas, Appellant

                                                  v.

                                   The State of Texas, Appellee



            FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY
           NO. 434,908, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING




               A jury found appellant Michael Thomas guilty of assault. See Tex. Penal Code Ann.

§ 22.01 (West Supp. 2000). The court assessed punishment at incarceration for one year and a $4000

fine, but suspended imposition of sentence and placed appellant on community supervision. We will

affirm.

               Appellant is represented by retained counsel, as he was at trial. Appellant did not

request that a reporter’s record be prepared either at his own or the State’s expense. See Tex. R.

App. P. 20.2, 34.6(b). Counsel nevertheless moved for an extension of time to file his brief, citing

the absence of a reporter’s record and appellant’s indigence as grounds. In the interest of justice, we

instructed the trial court to conduct a hearing to determine, among other things, if appellant is

indigent. Following the hearing, the court concluded that appellant is not indigent now and was not
indigent at the time he gave notice of appeal. 1 A reporter’s record of the indigency hearing was

prepared on our order. In point of error two, appellant contends the court erred by finding that he

is not entitled to a free reporter’s record.

                Appellant is an accountant employed by the State of Texas. He testified that his net

income at the time of trial was $1570 per month, and was “about the same” at the time of the hearing.

Appellant’s six-year-old daughter lives with him. Appellant’s former wife is obligated to pay child

support in an amount appellant did not specify. Appellant testified that he has difficulty collecting

this support, and that his former wife was over $2000 in arrears.

                Appellant’s apartment rent had recently been raised from $625 to $695 per month.

Appellant acknowledged that less expensive apartments are available, but expressed the opinion that

they are in unsafe neighborhoods and are otherwise unsuitable for his daughter. Appellant drives a

Ford Escort for which he makes a $300 per month payment; insurance and gasoline cost an additional

$130 per month. There is no evidence as to the value of this car or the amount still owed for its

purchase. According to appellant, his other monthly expenses—including after-school child care,

utilities, and groceries—exhaust his remaining take-home pay.

                The record contains a letter from the court reporter to appellant’s counsel estimating

the cost of the record to be $1386 without jury voir dire, $1726 with voir dire. The reporter

requested a $900 deposit. There is no evidence that appellant has sought to negotiate a payment

schedule with the reporter. Appellant testified that he could not afford to pay for the record.

                Appellant has been involved in several recent court proceedings, including a civil

action filed by the person appellant was convicted of assaulting in this cause. Appellant testified that


   1
       The hearing was held before Judge Brenda Kennedy.

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he has accumulated over $7000 in legal expenses in the civil case, in which he is also represented by

retained counsel. At one point, appellant testified that he had been unable to pay his attorney in the

civil case, but he later said that he had paid the attorney $2300. Appellant said he has paid $1700 to

the attorney representing him in this and another assault prosecution. Appellant testified that he still

owes his attorneys money, but did not say how much. Appellant’s attorney in the cause before us

testified that he and appellant have a contract, but counsel could not remember if the contract is oral

or written, the fee specified in the contract, or the amount appellant has paid him so far. Appellant

posted an appeal bond.

               The determination of indigency is vested in the sound discretion of the trial court.

Kahmann v. State, 873 S.W.2d 785, 787 (Tex. App.—Austin 1994, pet. ref’d). There are no rigid

standards to guide the court in making this determination, and each case must be decided on its own

merits. Id. Given the evidence of appellant’s employment and his acknowledged ability to pay at

least some of his attorney’s fees, and in the absence of evidence that appellant has made any effort

to obtain the appellate record, the trial court’s conclusion that appellant did not make a prima facie

showing of indigence was not an abuse of discretion. Point of error two is overruled.

               In point of error one, appellant contends he was denied his constitutional right to a

speedy trial and that the court erred by overruling his pretrial motion to dismiss on that ground. See

U.S. Const. Amend. VI; Tex. Const. art. I, § 10. Without a record of the evidence adduced at the

hearing on the motion to dismiss, nothing is presented for review. Point of error one is overruled.

               Finally, appellant contends the trial court denied him due process and due course of

law by “directing the clerk’s record be sent to the Third Court of Appeals before the timely filing of

a motion for new trial, and then us[ing] the absence of the clerk’s record as a pretext for not holding


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a hearing on the motion for new trial.” See U.S. Const. Amend. XIV; Tex. Const. art. I, § 19. The

record shows that sentence was suspended on July 2, 2000. Appellant filed his notice of appeal on

July 16. The clerk’s record was received and filed by this Court on July 28. Appellant filed a motion

for new trial on Monday, August 2. See Tex. R. App. P. 21.4(a). Counsel testified at the hearing

below that “I was informed, upon requesting a hearing for a new trial . . . that the court no longer had

jurisdiction.”

                 There is no evidence that the trial court directed the clerk to forward the record to this

Court within thirty days, much less that the court did so for the purpose of denying appellant a

hearing on his motion for new trial. Moreover, there is no evidence that appellant actually delivered

the motion for new trial to the trial court or otherwise brought the motion to the court’s attention.

See Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998) (how motion for new trial is

presented to trial court); Tex. R. App. P. 21.6.

                 In any event, the motion for new trial and supporting affidavits were not sufficient to

entitle appellant to a hearing. The primary issue raised in the motion was the alleged denial of a

speedy trial. This contention had been presented to the court in appellant’s pretrial motion to dismiss,

and had been overruled by the court following a hearing. Six additional grounds for a new trial were

alleged in the motion without elaboration. Three of these grounds complained of the court’s refusal

to give defensive instructions and were determinable from the trial record. See Reyes v. State, 849

S.W.2d 812, 816 (Tex. Crim. App. 1993). For the same reason, no hearing was needed to rule on

appellant’s complaint that he was not permitted to complete his trial testimony. Another alleged

ground for new trial was that a defense character witness was not allowed to testify, but the motion

was not supported by an affidavit showing the substance of the unnamed witness’s testimony. See


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id. Finally, the motion for new trial alleged that the court improperly failed to grant appellant’s

motion for continuance to obtain a material witness. The supporting affidavits reflect that the missing

witness was the arresting officer, and that appellant did not attempt to obtain his presence until after

trial began. The affidavits do not summarize the officer’s testimony or otherwise explain why that

testimony was important to the defense. Point of error three is overruled.

               The judgment of conviction is affirmed.




                                               __________________________________________

                                               Mack Kidd, Justice

Before Justices Kidd, Yeakel and Jones*

Affirmed

Filed: January 11, 2001

Do Not Publish




*
    Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment.
    See Tex. Gov’t Code Ann. § 75.003(a)(1) (West 1998).




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