In the Interest of E.E.R., E.R., and S.A.R., Children--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00593-CV
IN THE INTEREST OF E.E.R., E.R., and S.A.R.
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-PA-01641
Honorable Juan Gallardo, Judge Presiding (1)
Opinion on Appeal of Order Denying Claim of Indigence

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 10, 2004

ORDER DENYING CLAIM OF INDIGENCE AFFIRMED

After the trial court terminated Edwin Richardson's parental rights to E.E.R., E.R., and S.A.R., Richardson filed a notice of appeal and affidavit of indigence. The trial court conducted a hearing on the indigence claim and signed an order finding Richardson is not indigent. See Tex. Fam. Code Ann. 263.405(c) (Vernon 2002). Richardson appeals the order denying his claim of indigence and moves for appointment of appellate counsel. See id. 263.405(g). Clerk's and reporter's records containing items material to the indigency issue have been filed.

We review a trial court's determination of indigence for abuse of discretion. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.-San Antonio 2001, pet. denied). Under this standard, we will reverse the trial court's decision on factual issues only if the record establishes it "could reasonably have reached only one decision," and it failed to do so. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). The trial court's legal conclusions will be reversed if the court failed to analyze or apply the law correctly. Id. at 840.

Richardson's affidavit of indigence states he was incarcerated in Arizona and has no employment income. However, the affidavit contains no information regarding other income, assets, debts, or expenses. At the indigence hearing, the Texas Department of Protective and Regulatory Services presented evidence that Richardson receives $1,498.00 per month in military retirement benefits, from which $83.75 is deducted for payment of child support. Although the witness testified she did not know whether any other deductions were taken from the benefits, Richardson's attorney did not present any evidence of other deductions, either through witnesses or through an affidavit from Richardson. On appeal, Richardson contends his former wife receives half of his military retirement benefits. However, this evidence was not before the trial court.

Because Richardson failed to establish he was indigent, the trial court did not abuse its discretion in finding him not indigent. We therefore affirm the trial court's order and deny Richardson's motion for appointment of counsel.

PER CURIAM

1. Sitting by assignment.