OPINION
ROBERTSON, Justice.
The jury rejected appellant’s plea of not guilty, found him guilty and assessed punishment at confinement for eight years and a fine of $974.64. Issues on this appeal are (1) whether there was compliance with the Speedy Trial Act and (2) whether appellant received ineffective representation by trial counsel.
Since the sufficiency of the evidence is not challenged, there is no reason to summarize the facts of the offense.
In his second ground of error, appellant contends the trial court erred in denying his motion to dismiss “for want of a speedy trial ... when the state’s attempted post 120 day announcement of ready did not aver readiness within 120 days.” We disagree.
The record discloses that on the day appellant’s case was called for trial, February 21, 1983, he filed a short “Motion to Dismiss” alleging that the date of the commencement of the cause of action was March 26, 1982 and that “more than 120 days have passed since the commencement of this action.” Appellant’s trial counsel submitted no evidence in support of the motion, but merely stated to the court:
Mr. Smith: Your Honor, if I may attempt to state the facts as I understand them and what the court’s file would reflect, Mr. Lewis had been arrested and made bond back in March, 1982. There was an appearance date set I believe for April 12, 1982, at which time Mr. Lewis did not appear. Any calculations for my motion is based upon the time after the re-arrest as opposed to counting any time which he was not appearing before the court. He was re-arrested on October 20th, I believe.
On or about December 1st I believe the docket sheet is going to reflect an announcement of ready by the prosecution. Although that is reflected there was no one present, no witnesses present. I quite frankly would not consider that actually ready for trial, because no one was there for trial except for the defendant.
There have expired over 120 days since October 20th until today, the date that Mr. Lewis is brought to trial; and on that basis under the Speedy Trial Act I would ask the court to dismiss this action.
These statements of counsel, of course, are not evidence, but in light of Canada v. State, 660 S.W.2d 528, 530 (Tex.Crim.App.1983), it appears appellant is entitled to rely upon them since the recitation “had properly placed the event in the record.”
Considering the record as a whole, we are able to discern the following events. The charge against appellant was filed on March 24, 1982, and he was arrested. After making bond, appellant failed to appear for his arraignment on April 15, 1982. Appellant’s bond was forfeited and he was rearrested on October 20, 1982, according to appellant’s counsel. The docket sheet reflects that appellant appeared in court and was arraigned on November 1, 1982. At the arraignment hearing, the case was reset for December 1, 1982 for hearing motions. On December 1, 1982, the docket sheet reflects that appellant’s case was reset for February 21, 1983 for jury trial. Although the docket sheet does not disclose that the state announced ready for trial on December 1, 1982, appellant’s trial counsel stated that, in fact, the state did announce ready on that date. The first actual announcement of ready, as reflected by the record, is when the state responded to ap[245]*245pellant’s Motion to Dismiss on February 21, 1983:
MR. BUCHANAN: The State would respond in that the State has been in contact with several of the witnesses including the witness who would be necessary witnesses at the original trial setting who would include Mr. Bancroft, Mr. Victor, Detectives Mueller, Mavis, Hightower, Sherrie Hale as well as Ed Perkins from the bank who would also if present at this time testify that he was ready and in fact had searched his records to determine that the checking account that the check was drawn on had indeed been closed prior to the date that the check was written.
The State would maintain it has been ready for trial at all times. Any delay has not been intentional delay by the prosecutor. My understanding is also that the defendant in this case, Irvin Lewis, also bond forfeited at one time.
Thus it appears that, without regard to what we accept as “the facts”, the trial court correctly denied the motion to dismiss. First, if the announcement of the prosecutor on February 21 that “it has been ready for trial at all times” is to be given effect, this announcement must stand absent some contrary showing by appellant. Secondly, even if it becomes necessary to actually compute the number of days during which the state had not announced ready, appellant is in no better position to assert this ground of error. The period from April 15 through October 20 (while appellant was at large on a bond forfeiture) is to be excluded. Likewise, the period between November 1 and December 1 (the resetting agreed to by both sides for appellant to file motions) is to be excluded. On December 1, the trial court set the case for a jury trial on February 21, 1983. This period, likewise, is to be excluded because it matters not whether this resetting was agreed to by the attorneys or it was the first available date the court could set the ease for trial. In the first instance, the time would be excluded because it was agreed to by appellant, .and in the second instance, the act does not apply to delays caused by congested court dockets. So, no matter how the computation is made, appellant’s rights guaranteed by the Speedy Trial Act were not violated. Appellant’s second ground is overruled.
In his first ground, appellant contends he was denied effective assistance at trial “when his counsel failed to investigate and, then, cause to be set aside a prior forgery probation, which was premised upon a fundamentally defective information, thereby causing the application for probation to be withdrawn which adversely affected the sentencing proceeding.” As a predicate for discussion of appellant’s contention, we refer to the record where the following is found.
Present counsel was appointed on March 3, 1983 to represent appellant on appeal following his conviction and notice of appeal on February 25,1983. No motion for new trial was filed and the record was approved without objection on June 14, 1983. Faced with this approved record, appellant’s present and well experienced counsel must have realized he was faced with the problem of a “totally inadequate record,” as we pointed out in Dunn v. State, 650 S.W.2d 139, 140 (Tex.App.— Houston [14th Dist.] 1983) to sustain a charge of ineffective assistance of counsel. The record only revealed that appellant filed a written election to have the jury assess punishment and a written motion for probation. After appellant testified at the punishment phase of the trial and admitted he had previously been convicted of forgery and had been granted probation, his trial counsel withdrew the motion for probation. This, obviously, would not provide any basis for sustaining a charge of ineffective assistance of counsel.
His energetic and innovative appellate attorney, however, deciding to get additional facts made a part of the appellate record, took the following steps:
1.
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OPINION
ROBERTSON, Justice.
The jury rejected appellant’s plea of not guilty, found him guilty and assessed punishment at confinement for eight years and a fine of $974.64. Issues on this appeal are (1) whether there was compliance with the Speedy Trial Act and (2) whether appellant received ineffective representation by trial counsel.
Since the sufficiency of the evidence is not challenged, there is no reason to summarize the facts of the offense.
In his second ground of error, appellant contends the trial court erred in denying his motion to dismiss “for want of a speedy trial ... when the state’s attempted post 120 day announcement of ready did not aver readiness within 120 days.” We disagree.
The record discloses that on the day appellant’s case was called for trial, February 21, 1983, he filed a short “Motion to Dismiss” alleging that the date of the commencement of the cause of action was March 26, 1982 and that “more than 120 days have passed since the commencement of this action.” Appellant’s trial counsel submitted no evidence in support of the motion, but merely stated to the court:
Mr. Smith: Your Honor, if I may attempt to state the facts as I understand them and what the court’s file would reflect, Mr. Lewis had been arrested and made bond back in March, 1982. There was an appearance date set I believe for April 12, 1982, at which time Mr. Lewis did not appear. Any calculations for my motion is based upon the time after the re-arrest as opposed to counting any time which he was not appearing before the court. He was re-arrested on October 20th, I believe.
On or about December 1st I believe the docket sheet is going to reflect an announcement of ready by the prosecution. Although that is reflected there was no one present, no witnesses present. I quite frankly would not consider that actually ready for trial, because no one was there for trial except for the defendant.
There have expired over 120 days since October 20th until today, the date that Mr. Lewis is brought to trial; and on that basis under the Speedy Trial Act I would ask the court to dismiss this action.
These statements of counsel, of course, are not evidence, but in light of Canada v. State, 660 S.W.2d 528, 530 (Tex.Crim.App.1983), it appears appellant is entitled to rely upon them since the recitation “had properly placed the event in the record.”
Considering the record as a whole, we are able to discern the following events. The charge against appellant was filed on March 24, 1982, and he was arrested. After making bond, appellant failed to appear for his arraignment on April 15, 1982. Appellant’s bond was forfeited and he was rearrested on October 20, 1982, according to appellant’s counsel. The docket sheet reflects that appellant appeared in court and was arraigned on November 1, 1982. At the arraignment hearing, the case was reset for December 1, 1982 for hearing motions. On December 1, 1982, the docket sheet reflects that appellant’s case was reset for February 21, 1983 for jury trial. Although the docket sheet does not disclose that the state announced ready for trial on December 1, 1982, appellant’s trial counsel stated that, in fact, the state did announce ready on that date. The first actual announcement of ready, as reflected by the record, is when the state responded to ap[245]*245pellant’s Motion to Dismiss on February 21, 1983:
MR. BUCHANAN: The State would respond in that the State has been in contact with several of the witnesses including the witness who would be necessary witnesses at the original trial setting who would include Mr. Bancroft, Mr. Victor, Detectives Mueller, Mavis, Hightower, Sherrie Hale as well as Ed Perkins from the bank who would also if present at this time testify that he was ready and in fact had searched his records to determine that the checking account that the check was drawn on had indeed been closed prior to the date that the check was written.
The State would maintain it has been ready for trial at all times. Any delay has not been intentional delay by the prosecutor. My understanding is also that the defendant in this case, Irvin Lewis, also bond forfeited at one time.
Thus it appears that, without regard to what we accept as “the facts”, the trial court correctly denied the motion to dismiss. First, if the announcement of the prosecutor on February 21 that “it has been ready for trial at all times” is to be given effect, this announcement must stand absent some contrary showing by appellant. Secondly, even if it becomes necessary to actually compute the number of days during which the state had not announced ready, appellant is in no better position to assert this ground of error. The period from April 15 through October 20 (while appellant was at large on a bond forfeiture) is to be excluded. Likewise, the period between November 1 and December 1 (the resetting agreed to by both sides for appellant to file motions) is to be excluded. On December 1, the trial court set the case for a jury trial on February 21, 1983. This period, likewise, is to be excluded because it matters not whether this resetting was agreed to by the attorneys or it was the first available date the court could set the ease for trial. In the first instance, the time would be excluded because it was agreed to by appellant, .and in the second instance, the act does not apply to delays caused by congested court dockets. So, no matter how the computation is made, appellant’s rights guaranteed by the Speedy Trial Act were not violated. Appellant’s second ground is overruled.
In his first ground, appellant contends he was denied effective assistance at trial “when his counsel failed to investigate and, then, cause to be set aside a prior forgery probation, which was premised upon a fundamentally defective information, thereby causing the application for probation to be withdrawn which adversely affected the sentencing proceeding.” As a predicate for discussion of appellant’s contention, we refer to the record where the following is found.
Present counsel was appointed on March 3, 1983 to represent appellant on appeal following his conviction and notice of appeal on February 25,1983. No motion for new trial was filed and the record was approved without objection on June 14, 1983. Faced with this approved record, appellant’s present and well experienced counsel must have realized he was faced with the problem of a “totally inadequate record,” as we pointed out in Dunn v. State, 650 S.W.2d 139, 140 (Tex.App.— Houston [14th Dist.] 1983) to sustain a charge of ineffective assistance of counsel. The record only revealed that appellant filed a written election to have the jury assess punishment and a written motion for probation. After appellant testified at the punishment phase of the trial and admitted he had previously been convicted of forgery and had been granted probation, his trial counsel withdrew the motion for probation. This, obviously, would not provide any basis for sustaining a charge of ineffective assistance of counsel.
His energetic and innovative appellate attorney, however, deciding to get additional facts made a part of the appellate record, took the following steps:
1. On July 11, 1983, he filed with this court a pleading entitled “Motion to Extend Time to File Brief” in which he set out the [246]*246facts as shown by the record concerning the filing and withdrawal of the application for probation. Additionally, however, the motion alleges that the “prior conviction was bottomed upon a fundamentally defective information” and, that “[a]ppellant ... has a habeas hearing set on August 2, 1982 and intends to supplement the record in this cause with testimony from same.” The prayer to the motion was “counsel herein seeks an extension until the 1st day of September, 1983, ... so that counsel may file a Motion to Supplement this record with same. Accordingly, this Court would have a record that speaks the truth”. This court denied this motion on July 21, 1983, but did extend the time for appellant to file his brief to August 1, 1983.
2.Four days later, on July 25, appellant filed with this court a pleading entitled “Motion to Abate Appeal,” which in addition to containing the allegations of the above-referenced motion, further alleged that the appeal presented “issues relating to whether appellant received effective representation of counsel concerning the withdrawal of the application for probation.” The motion further alleged:
[T]he appeal should be abated in the interest of judicial economy. If the eviden-tiary hearing is not conducted at this point, and the direct appeal is affirmed, appellant would have to file an application for writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure to develop the issues. Appellant is sure that it has been noted that his counsel is court-appointed on this direct appeal and, of course, the presumption exists that one who is indigent on the appeal would be too poor to retain a habeas attorney. The procedure is available which would allow the issues to be developed at this time.
Finally, appellant’s prayer was that “this Court order the appeal abated and order the trial court to conduct an evidentiary hearing on the issues raised herein.” Again, this court denied the motion on August 4, 1983, but since a brief had not been filed by the August 1 deadline, this court, sua sponte, abated the appeal and remanded the cause to the trial court so that it could see that appellant received effective assistance of counsel on appeal.
3. Thereafter, on August 8, appellant filed a motion for rehearing, pleading, in effect, for the results previously sought. This motion was overruled on August 18, 1983.
4. Thereafter, on September 15, 1983, appellant filed in this court his “Petition for Discretionary Review to the Court of Criminal Appeals of Texas.” By such proceeding he sought an abatement of the appeal for the same reason advanced to this court, his prayer being,
[F]or the reasons herein advanced, Appellant prays that this Court accept this Petition, reverse the Court of Appeals, abate the appeal and remand the cause to the trial court for a hearing on the issues raised by Appellant’s Motion and Brief.
The court of criminal appeals refused such petition on January 11, 1984.
5. Thereafter, on February 22, 1984, appellant filed in the trial court his “Motion for Evidentiary Hearing” which was almost identical to his motion filed in this court and the court of criminal appeals and concluded with the request “that the trial court conduct an evidentiary hearing to determine whether he received effective assistance of counsel; therefore, making the Record speak the truth.” The trial court granted appellant’s request; the hearing was held on April 3, 1984. By docket sheet entry, the court ordered the court reporter to transcribe the testimony heard, and the transcript in now a part of the record before this court.
Appellant asserts that we should consider this evidence as support for his contention that he was denied effective assistance of counsel. He argues that since the information alleging the offense of forgery for which he had previously been convicted was fundamentally defective, the failure of his trial counsel “to discover an invalid prior conviction shows that counsel’s conduct was deficient and ineffective; and, that this inferior performance prejudiced [247]*247appellant from receiving fair consideration from the jury on the issue of penalty.” On the other hand, the state challenges our consideration of this evidence developed at the hearing because this court had previously denied permission to supplement the record and the court of criminal appeals had refused review.
As authority for this court and the court of criminal appeals to abate the appeal and order the trial court to conduct the eviden-tiary hearing requested, appellant relied upon Guillory v. State, 638 S.W.2d 73 (Tex.App.— Houston [1st Dist.] 1982). We did not then, nor do we now, consider such case as authority for the appellate court to abate the appeal and order the trial court to conduct a hearing on an issue that was never brought to the attention of the trial court. That is a proper subject for post conviction habeas corpus.
Without so stating, appellant apparently relies upon Tex.Crim.Proc.Code Ann. art. 40.09 (Vernon 1981), for the authority of the trial court to supplement the record so that “the record [(sic) will] speak the truth.” We are not called upon by the facts before us in this case to determine when, after notice of appeal has been given, the trial court can, if ever, order a supplementation of the record. The narrow issue before us is the authority of the trial court to conduct a hearing and supplement the appellate record with a transcript of that hearing when the appellate court has already denied such a hearing.
This court has previously held that the trial court does not have the authority to do so. Smith v. State, 681 S.W.2d 71 (Tex. App.—Houston [14th Dist.], 1983, pet. granted). Nor does the fact that the hearing was held after we had ordered the appeal abated alter the rule. The appeal was abated on order of this court so that the trial court could assure appellant received effective assistance of counsel on appeal. As stated earlier, the issue of effective representation before the trial court was never raised in the trial court and it, therefore, had no authority to cause the record “to speak the truth” about a matter that was not a part of the record. We refuse to permit the record to be supplemented in the manner sought by resourceful counsel, for to do so would open Pandora’s Box. Appellant is not denied the right to properly assert his claim; he is merely required to follow established procedure and assert it in a post-conviction proceeding.
Having refused to consider the evidence heard by the trial court on appellant’s motion to supplement the record, there is no evidence to support appellant’s claim of ineffective assistance of counsel, and the ground is overruled.
The judgment is affirmed.