EX PARTE ROGER DEAN UPCHURCH, JR. (dissenting)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-71,431-01
EX PARTE ROGER DEAN UPCHURCH, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM JOHNSON COUNTY 
Johnson, J., dissenting to denial of relief. 
D I S S E N T I N G S T A T E M E N T

The trial court held a hearing on the issue of applicant's indigence on February 23, 2007. The trial court ruled that applicant was not indigent and refused to appoint an attorney to represent him on the state's motion to revoke applicant's deferred adjudication. Applicant's community supervision was adjudicated while he was without counsel, and he was sentenced to the maximum allowable term of imprisonment.

Applicant's sole ground in his habeas corpus petition said, "After repeatedly asking for attorney, I was denied saying I was not indigent enough. But probation officer made me quit my job after 10 yrs. Also made me move in which I did not have no place to except I lived in my parents shed (7 x 7 in size) with no heat."

The trial judge found, and the record reflects, that on January 16, 2007, applicant told the trial court that he would retain an attorney "'with the filing of my income tax' indicating that he had funds to retain counsel." The case was reset for February 16 and again for February 23, when applicant "advised the court that he was not able to retain an attorney." On February 23, the judge conducted an indigence hearing. RR February 23, 2007 pp. 3-5.

THE COURT: . . . Are you working right now?

THE DEFENDANT: Yes, sir.

THE COURT: Where are you working?

THE DEFENDANT: Cleburne Glass.

THE COURT: How much do you make there?

THE DEFENDANT: I bring home about 230 every week.

THE COURT: You get paid hourly or salary?

THE DEFENDANT: Hourly.

THE COURT: What is it per hour?

THE DEFENDANT: I make 8.40 an hour.

THE COURT: How much did you pay your bondsman to get out of jail?

THE DEFENDANT: My boss and secretary paid my bondsman to get me out of jail.

THE COURT: How much did your boss and secretary pay?

THE DEFENDANT: 1750. I'm paying him back a hundred dollars a week.

THE COURT: Are you going to try to represent yourself in this matter?

THE DEFENDANT: No, sir. I was told to request a court appointed.

THE COURT: Who told you that?

THE DEFENDANT: My PO.

THE COURT: Your PO. Meaning your probation officer?

THE DEFENDANT: Yes, sir.

. . .

THE COURT: I'm not going to appoint you anybody. If you're out there working, you can make a bond to get out of jail, you can afford your own attorney. If you can't, you can represent yourself but I don't find you're indigent at this point.

. . .

THE COURT: . . . And that is your trial date. That's when [March 16, 2007] you're going to trial on this case. If you get an attorney hired, have that attorney notify my office and the DA's office as soon as that attorney is hired; otherwise, you're going to be representing yourself.

During this exchange, applicant affirmatively stated that he did not wish to represent himself and affirmatively sought the appointment of counsel on the advice of his probation officer, who is surely familiar with what constitutes indigence and the resultant eligibility for a court-appointed attorney.

In a normal work year of 40 hours a week for 52 weeks, applicant will work 2080 hours, earning a gross annual income of $17,472, $1456 per month, or $336 per week. His net pay is about $230 per week, and he is paying his boss back for posting bond, decreasing his take-home pay to $130 per week. At the time of his hearing, applicant's net pay was $6760 per year, or $563 per month.

Perhaps when the trial judge said, "If you're out there working, you can make a bond to get out of jail, you can afford your own attorney," he was unfamiliar with the term "working poor." The federal poverty threshold in 2007 was a gross income for one person of $10,210 per year, or $851 per month. There is no geographic variation in the guide line; the same figures are used for all 50 states and D.C., urban, suburban, or rural. Thus there is no recognition of higher costs of living in some areas, lower costs in others. "Although the thresholds in some sense reflect families [sic] needs, they are intended for use as a statistical yardstick, not as a complete description of what people and families need to live." http://www.census.gov/hhes/www/poverty/povdef.html

Federal guidelines for eligibility for food stamps are a gross monthly income of 130% and a net monthly income of 100% of poverty level. http://www.fns.usda.gov/fsp/government/ FY07_ Income_Standards.htm In 2007, those guidelines set out a maximum gross income of $1062 and maximum net income of $817 for a single person household. Applicant's net monthly income at the time of the hearing was $920, but his functional net income was $130 per week, or $563 per month. A person with that net income is well within the net-income eligibility guidelines for Food Stamps and, in the real world, many people who are technically above the poverty line are still unable to pay for anything more than the necessities of life-food, shelter, clothing-and sometimes not even the necessities.

Hiring a lawyer is an expensive proposition. His employer posted bond, so applicant cannot be held not to be indigent on that basis. Applicant tried for three months to hire a lawyer, without success. Even with the help of his parents, he was unable to gather $750 to retain an attorney. The attorney with whom he had been discussing representation both testified in court and filed an affidavit attesting that, in his opinion, applicant was indigent and unable to retain an attorney.

Among the grounds set out in the state's motion to adjudicate were allegations that he was behind on his probation fees and had not completed the required therapeutic programs ordered in his conditions of community supervision. This could be further evidence that he was indigent. Getting behind on fees is often an indication of lack of financial resources. While the record does not address such a circumstance, some therapeutic programs refuse attendance if the applicable fee is not paid, thereby preventing an indigent client from completing required counseling and provoking revocation.

While there was sufficient evidence to revoke applicant's supervision because of his failure to report to his community-supervision officer on several occasions and an arrest for driving while his license was suspended, at the time of the hearing on the state's motion to adjudicate applicant was indeed indigent. As the state conceded in its response, "The right of counsel extends to a probationer during a revocation hearing unless the probationer affirmatively waives said right." Applicant did not affirmatively waive assistance of counsel, and indeed, specifically requested such assistance. Applicant was indigent and entitled to a court-appointed attorney. The trial judge refused to provide the required appointed counsel, leaving applicant without counsel at a critical stage of criminal proceedings.

It is ludicrous in this situation to argue that habeas corpus relief is not available because applicant could have appealed the trial judge's finding that applicant was not indigent to the court of appeals, but did not do so. How does an indigent defendant who is denied court-appointed counsel to assist him at a revocation hearing even know that he has a right to appeal the trial judge's finding that he is not indigent? And how, being indigent, does he acquire the services of an appellate counsel to pursue such an appeal?

I respectfully dissent to the denial of habeas corpus relief.

Filed: September 30, 2009

Do Not Publish