In the Interest of R.C., a child--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00397-CV

IN THE INTEREST OF R.C.

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-PA-00196

Honorable Fred Shannon, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 28, 2005

AFFIRMED

Rene Cruz, Sr., appeals the trial court s determination that an appeal of the order terminating his parental rights would be frivolous. In his motion for new trial and statement of appellate points, Cruz argued the following: (1) at the termination hearing, the trial court erred in overruling his announcement of not ready; (2) the evidence is legally and factually insufficient to support the court s finding that he engaged in conduct which endangered the physical or emotional well-being of the child; and (3) the evidence is legally and factually insufficient to support the trial court s finding that termination of his parental rights was in the best interest of the child. After a hearing on the motion, the trial court found that an appeal on any of these points would be frivolous. And, because Cruz failed to file an affidavit of indigence, the trial court found that he was not indigent. Cruz filed a notice of appeal. We ordered this appeal to be considered on the record without briefing. See Tex. Fam. Code Ann. 263.405(g) (Vernon 2002).

An appeal is frivolous when it lacks an arguable basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App. San Antonio 1998, no pet.). In considering whether an appeal is frivolous, the trial judge may consider whether the appellant has presented a substantial question for appellate review. See Tex. Civ. Prac. & Rem. Code Ann. 13.003(b) (Vernon 2002); Tex. Fam. Code Ann. 263.405(d)(3) (Vernon 2002); In re H.D.H., 127 S.W.3d 921, 923 (Tex. App. Beaumont 2004, no pet.). A trial court s determination that an appeal is frivolous is reviewed under an abuse of discretion standard. De La Vega, 974 S.W.2d at 154; see In re D.C., 04-04-00928-CV, 2005 WL 1750130 (Tex. App. San Antonio July 27, 2005, no pet. h.) (memorandum opinion).

On June 27, 2005, at the hearing on Cruz s motion for new trial and statement of appellate points, Cruz s appointed attorney, Jerry Uretsky, testified that he was not ready to proceed with his motion because he was unable to locate Cruz. Before Uretsky was appointed as counsel, Jesse Van Ness represented Cruz. According to Uretsky, when he first met Van Ness, Van Ness told him that Cruz had been incarcerated in a parole house in Houston. Van Ness had been communicating with Cruz through Cruz s girlfriend, who lives in Laredo, Texas. Uretsky testified that Cruz was paroled from that Houston parole house, for lack of a better term, on June 10th [2005]. He was paroled to the address of his girlfriend. On June 10, 2005, after Cruz arrived in Laredo and was processed in with the parole department there, he called Uretsky from his girlfriend s cell phone. Cruz and Uretsky scheduled a meeting for Monday, June 12, 2005, so that Cruz could execute an affidavit of indigence. According to Uretsky, after that phone call on June 10, 2005, he never heard from Cruz again. Uretsky called Cruz s girlfriend and was told that Cruz had arrived in Laredo on June 10, 2005, and that she had seen him that day. However, she never saw Cruz again. Uretsky testified that he wrote Cruz a letter, notifying Cruz that he had a short period of time to execute the affidavit of indigence. Uretsky mailed it to his girlfriend s home in Laredo, Cruz s father s home, and the parole house where Cruz had lived in Houston. Despite sending these letters, Uretsky testified that he had not heard from Cruz, and that the affidavit of indigence had not been filed because Cruz had not cooperated with him.

With regard to the issues listed in Cruz s motion for new trial and statement of appellate points, at the hearing on that motion, Cruz s attorney did not discuss why the trial court erroneously overruled Cruz s announcement of not ready, or why the evidence was legally and factually insufficient to support the court s findings. At this stage on appeal, in considering whether the trial court abused its discretion, we have only the reporter s record from the hearing on Cruz s motion for new trial and statement of appellate points. See Tex. Fam. Code Ann. 263.405(g) (Vernon 2002); In re H.D.H., 127 S.W.3d at 922-23. Reviewing that record and the clerk s record, we find nothing that would lead us to conclude that the trial court abused its discretion in determining that Cruz s appellate points were frivolous. Therefore, Cruz has not met his burden in showing the trial court abused its discretion. Moreover, given that Cruz failed to file an affidavit of indigence, the trial court did not err in finding that he was not indigent.

We affirm the trial court s order.

PER CURIAM