NO. 07-02-0250-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL B SEPTEMBER 1, 2005

______________________________

SAMMY CH AVEZ, Appellant
v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 287 TH DISTRICT COURT OF BAILEY COUNTY; NO. 2104-B; HON. GORDON H. GREEN, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appellant

Sammy Chavez appeals his conviction for del ivering marijuana. His sole issue concern s t he trial court’s decision to overrule his appli cation for appointed trial counsel. We affirm the judgm ent of thetrial co urt. There is no duty on the part of the trial court to appoi nt counsel until the defendant shows he is in digent. Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim . App. 1988) ; Atwood v. State, 120 S.W.3d 892, 896 (Tex. App.–Texarkana 2003, n o pet.). Furthermore,2

the decision regarding a defendant’s status as an indigent is made on a case-by-case basis
as of the time the i ssue is raise d and no t as of so me prior o r future ti me. Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. Ap p. 2004); Gray v. Robinson, 744 S.W.2d at 607. Next, should a pri ma facie showing of indigence be made by the defendant, the burden shiftsto the State to show that the accused is not impoverished. Whitehea d v. State, 130 S.W.3d at 874. Finally , if after inquiry it appea rs that adefendant has sufficient resources to hire a lawyer, the judge need not appoint one for him at

governme nt expen se. Oliver v. State, 872 S.W.2 d 713, 71 6 (Tex. C rim. App. 1994). Here, appellant informed the trial court at his arraignment thathe was in the process of hiring an attorney. The trial court gave him until March 27th to do so. When the 27 th arrived, appellant disclo sed that his efforts we re ongoi ng. This resulted in the trial cour t affording him until April 10 th to secure one. On April 10th, appellant made application for
an app oi nted attorney, but the trial court denied the application, findi ng that he did not qualify for one. When the cause finally came on for trial on May 1 st , appellant told the trial court that he not only had secured $1000 wi th which to retain counsel but also contacted
a lawyer the day before. However, the attorney declined representation not because the $1000 retainer

was ins ufficien t but beca use of the belated ness of a ppellan t’s reque st. No additional time was given appellant by the court, however. Instead, it proceeded with the trial. Missing from the record before us are both the pretrial application purportedly filed byappellant and the evidence, if any, he used to support his request. Moreover, appellant does n ot co ntend that he accompanied his application w ith any evidence to support the request. See Whi

tehead v. State , 130 S.W.3d at 874 (stating tha tthe allegations in a3

motion for appointed counsel are not evidence). Nor a re we cit ed to any such evidence. Withoutthis information, we cannot say whether appellant fulfil led his burden to establish a prima facie showing of indigen ce. This

is fatal since an appella nt must pre sent us w ith
a record su fficient to show r eversibl e error. Kent

v. State, 982 S.W.2d 63 9, 641 (Tex. App.–Ama rillo 19 98, pet. r ef’d, unt imely fil ed). Thatevidence of indigence may have been tendered after trial and in support of his application for appointed counsel on appeal is of no benefit. This is so because we do not knowif the trial court had that information before it when it decided to deny the application. Again, the decision is made on a case-by-case basis as of the time the issue is raise d. So,
e vidence outside the purview of the trial court at the time of i ts ruling cannot be used t o later attack th at ruling

. See Whitehead v. Stat e , 130 S .W.3d at 874 (stating that the affidavi ts could not be considered on appe al sincethey wer e not bef ore the trial court when it ruled)

. In sum, we do not know what evidence, if any, appellant offered the trial judge when he moved for app ointed tria l counsel. Yet, we do know that he h ad access to at least $1000 before trial with which to retain an attorney. These circumstances prevent us from holding that the court’s refusal to appoint trial counsel was erroneous. Accordingly, the judgment of the trial court is affirmed.

Per Curiam Do not publish.