Upchurch, Roger Dean Jr. ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-71,431-01

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EX PARTE ROGER DEAN UPCHURCH, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 32027A IN THE 18TH DISTRICT COURT FROM JOHNSON COUNTY

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   Per curiam. O R D E R  

   Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency with a child and sentenced to 20 years' imprisonment. He did not appeal his conviction.

Applicant alleges that he was improperly deprived of his right to be represented by counsel at his deferred adjudication probation revocation proceeding even though he repeatedly requested that counsel be appointed. Specifically, he alleges that he was indigent at the time of his revocation proceeding as he had recently lost his job and was living in his parents' shed. He alleges that the trial judge refused to appoint counsel and insisted that he represent himself at the revocation proceeding. He alleges that he never waived his right to counsel.

Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Bird, 457 S.W.2d 559 (Tex. Crim. App. 1970); Ex parte Richardson, 496 S.W.2d 611 (Tex. Crim. App. 1973). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) in that it shall supplement the record with copies of any documents related to Applicant's indigency and request for appointment of counsel including a transcription of the court reporter's notes from any indigency hearing. The trial judge shall also supplement the record with a copies of all documents pertaining to Applicant's waiver of his right to counsel. The trial judge shall supplement the record with a copy of the admonishments he gave to the Applicant concerning the dangers and disadvantages of self-representation. Finally, the trial judge shall order Robert L. Ward to file an affidavit addressing the following issues: (1) whether Applicant contacted counsel to request that he represent Applicant in the adjudication proceeding in this cause, and if so, when Applicant contacted counsel; (2) whether counsel believed that Applicant could afford to hire a counsel to represent him at the adjudication proceeding, and, if so, why; (3) whether counsel believes that Applicant freely and voluntarily waived his right to counsel on the day of the adjudication proceeding and, if so, why; and, (4) whether counsel would have been willing to represent Applicant at the adjudication proceeding if had he been appointed to do so. In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether Applicant requested a determination of indigency and appointment of counsel and, if so, when Applicant made said requests. The trial court shall make findings of fact as to when the court made its indigency determination and as to what evidence supported its determination. The trial court shall make findings of fact as to whether Applicant waived his right to counsel and, if so, whether said waiver was voluntary. The trial court shall make findings of fact as to whether the trial court admonished Applicant as to the dangers and disadvantages of self-representation and, if so, shall detail the court's admonishments. The trial court shall make findings of fact as to whether Applicant contacted Ward to request that he represent Applicant in the adjudication proceeding in this cause, and if so, when Applicant contacted him. The trial court shall make findings of fact as to whether Ward believed that Applicant could afford to hire a counsel to represent him at the adjudication proceeding. The trial court shall make findings of fact as to whether Ward believes that Applicant freely and voluntarily waived his right to counsel on the day of the adjudication proceeding. The trial court shall make findings of fact as to whether Ward would have been willing to represent Applicant at the adjudication proceeding if had he been appointed to do so. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: March 25, 2009

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