DEANNA STOCKER,FROM A COUNTY COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00658-CR
NO. 05-88-00659-CR
NO. 05-88-00660-CR
NO. 05-88-00661-CR
NO. 05-88-00662-CR
NO. 05-88-00663-CR
NO. 05-88-00664-CR
NO. 05-88-00665-CR
NO. 05-88-00666-CR
NO. 05-88-00667-CR
 
DEANNA STOCKER,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF HUNT COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, BAKER, AND THOMAS
OPINION BY JUSTICE BAKER
FEBRUARY 2, 1989
        A jury convicted appellant on ten complaints of cruelty to animals. The court assessed six months in jail on each conviction, together with fines totaling $1,800.00, probated for twelve months.
        The only issue presented is whether the appellant is indigent for the purposes of appeal and is entitled to a free statement of facts and court-appointed counsel for appeal.
        Following her conviction and sentencing, appellant timely gave notice of appeal and filed an indigency affidavit. After a hearing, the court determined that the appellant was not indigent, denied her request for a free statement of facts and the appointment of counsel for her appeal, and released her court-appointed trial counsel. We affirm the trial court's order.
        The issue of whether an appellant is indigent is a matter of that appellant's financial status at the time of appeal, not at the time of trial. Zanghetti v. State, 582 S.W.2d 461, 462 (Tex. Crim. App. 1979). The final decision on the issue of indigency requires a case-by-case analysis of each individual situation. Stephens v. State, 509 S.W.2d 363, 365 (Tex. Crim. App. 1974). Appellant, by her assertion of indigency, had the burden on the issue. See Abdnor v. State, 712 S.W.2d 136, 140-41 (Tex. Crim. App. 1986). The standard of review is whether the trial court abused its discretion by the ruling made. See Abdnor, 712 S.W.2d at 143. It is true that when an appellant was represented by court-appointed counsel at the trial, there is a presumption that an appellant is indigent for purposes of appeal, but the presumption can be overcome by a showing to the contrary. See Bush v. State, 557 S.W.2d 772, 773 (Tex. Crim. App. 1977).
        Appellant testified that she owned a home valued at $27,000.00 which she was attempting to sell. She further testified that the home was subject to a $20,000.00 debt. She stated that if the house was sold, after the deduction of the debt, taxes, and fees, she would receive approximately $4,700.00. She testified that she paid approximately $150.00 per month on this home, and utility expenses were between $200.00 to $250.00 per month. She also stated that she received $350.00 income per month from the home since she rented out apartments in the home. She also testified that she was behind on the house payments, and she expected the house to be repossessed later in that month. Upon cross-examination, appellant testified that she did not own any real estate other than her home and did not own an automobile. She testified that she did own ten mustang horses. These are the horses upon which the State based its charges against appellant for cruelty to animals.
        The State produced evidence from a person who had sold seven horses that he had previously received from the appellant along with another horse and colt for $2,400.00. The State contends that the ten horses, if sold, could produce $3,000.00 to $4,000.00 cash and that the evidence showed there was a market for the horses. The State points out that there was no evidence in the record of the cost of the statement of facts and transcript, nor is there any evidence of the cost of retaining counsel for an appeal. The State argues that it produced sufficient evidence to rebut a presumption of appellant's indigency and that the record supports the trial court's ruling.
        Appellant, in her brief, asserts that following the hearing, her house was in fact repossessed, and her appellate counsel was informed by the court reporter and the court clerk that the statement of facts and transcript would cost approximately $2,400.00. Appellant concedes that none of these facts are in the record. Assertions in an appellate brief that are not supported by the record will not be accepted as fact, Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex. Crim. App. 1981), cert. denied, 456 U.S. 910 (1982), and do not represent error preserved for review. See Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983).
        Even in the face of appellant's testimony that she might lose her home, based upon the record before us we cannot conclude that the trial court abused its discretion by the ruling that it made. We overrule appellant's point of error and affirm the trial court's order.
 
                                                                                                                   __________________________
                                                          JAMES A. BAKER
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00658.F
 
 
File Date[01-02-89]
File Name[880658]