Cause _________________

§ IN THE CRIMINAL DISTRICT In re Joey CHARBONNEAU § COURT No. 2,

§ DALLAS COUNTY, TEXAS


APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

Applicant, defendant in cause numbers F07-55395 and F07-33596, moves the court to grant a writ of habeas corpus, and in support of such motion shows:


  1. Applicant Charbonneau is currently being unlawfully held in the Dallas County Jail by Lupe Valdez, Sheriff of Dallas County, Texas. On information and belief, Applicant is incarcerated pursuant to an oral order made in Criminal District Court No. 2, Dallas County, by Judge Don Adams. Charbonneau has no copy of this order.

  2. Charbonneau is charged with two felony offenses, cause numbers F07-55395 and F07-33596.


  1. On or about May 23, 2007, Charbonneau turned himself in to custody and was incarcerated at the Dallas County jail. While incarcerated, attorney Micheal Byck of the Dallas County Public Defender office was appointed to represent Applicant. Byck represented Applicant at one court hearing.


  1. On or about June 17, 2007, Charbonneau was released from custody on bond.


  1. On or about July 18, 2007, Charbonneau was told by a clerk that Judge Adams had withdrawn the appointment of counsel Byck for Charbonneau because he had been released on bond.


  1. On or about August 8, 2007, Charbonneau again inquired with the clerk about appointed counsel, and was again told he would have to hire counsel because he had been released on bond. Charbonneau also asked for the paperwork to request a court-appointed attorney and the clerk told Charbonneau no such paperwork existed.


  1. On or about August 21, 2007, the clerk told Charbonneau that he would have to have his court date reset to request counsel from Judge Adams.


  1. On September 20, 2007, Charbonneau went before Judge Adams to request appointed counsel. Judge Adams, without requesting any application for appointed counsel (as is required by state law and the Dallas County indigent defense plan), told Charbonneau that he must appear again the next day, after getting a job and hiring an attorney.


  1. On September 21, 2007, Charbonneau again appeared before Judge Adams and requested court-appointed counsel. Instead of considering Charbonneau’s request, Judge Adams asked Charbonneau if he had found a job. Judge Adams further told Charbonneau that his parents should hire an attorney for him if Charbonneau himself could not afford counsel.


  1. Judge Adams then reset Charbonneau for another appearance on September 24, 2007.


  1. On September 24, 2007, Charbonneau appeared before Judge Adams and requested court-appointed counsel. Judge Adams again told Charbonneau to get a job and did not appoint counsel. The clerk further told Charbonneau that in order to have counsel appointed, Charbonneau would have to return to the county jail.


  1. On September 25, Charbonneau again appeared before Judge Adams and requested court-appointed counsel. Judge Adams again refused to act on the request, and instead insisted that Charbonneau get a job. Charbonneau was reset again for September 26, 2007.


  1. On September 26, 2007, Charbonneau again requested court-appointed counsel and counsel was not appointed. Judge Adams raised Charbonneau’s bond and had him rearrested. Although Charbonneau had appeared in court numerous times over the previous months – including on September 20, 21, 24, 25 and 26 – on information and belief, Judge Adams found that Charbonneau’s bond was insufficient.


  1. Charbonneau is indigent and cannot afford to hire counsel. Charbonneau has requested that the county appoint counsel.


  1. The power of the court to set bail may not be used to oppress or punish. Tex. Code Crim. Proc. art. 17.15. A court may not raise a defendant’s bond for failure to obtain private counsel. Meador v. State, 780 S.W.2d 836, 837 (Tex. App. — Houston 1989, no pet. hist.).


  1. Article 26.04(m) of the Texas Code of Criminal Procedure prohibits courts from considering “whether the defendant has posted or is capable of posting bail,” when making indigency determinations, “except to the extent that it reflects the defendant’s financial circumstances” (emphasis added) (listing the defendant’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant as the evidence that may be considered by a court when evaluating whether a defendant is indigent).


  1. As the Supreme Court has recognized, “the fact that a defendant may be able to muster enough resources, of his own or of a friend or relative, to obtain bail does not in itself establish his nonindigence.” United States v. Hardy, 375 U.S. 277, 289 n. 7 (1964); see also 51 A.L.R. 3d 1108 (stating general rule that ability to post bail does not change indigency determination and listing cases from courts across the country in support). Tex. Code Crim. Proc. art. 26.04(m).


  1. The Texas Court of Criminal Appeals similarly prohibits consideration of a parent’s income in determining eligibility for appointed counsel: “Parents of appellant are not legally bound to pay for the expenses of an appeal . . . [e]ven though they put up a cash bail for appellant’s appearance . . .” Ex parte Combs, 545 S.W.2d 171, 174 (Tex. Crim. App. 1977) (internal citation and punctuation omitted).


  1. Spousal income available to the defendant is the only third-party income that may be considered by the Court when determining whether a defendant is indigent. Tex. Code Crim. Proc. art. 26.04(m). Applicant is not married.


  1. The Dallas County Indigent Defense Plan, revised in July 2007, prohibits the court from considering “whether the defendant has posted or is capable of posting bail,” except to the extent it reflects other permitted considerations. ¶ 4.1. The Dallas County plan also requires that “the court or its designee . . . evaluate each request for court appointed counsel.” Id. Each applicant for counsel, moreover, will be evaluated according to a written form addressing the permitted sources of the applicants’ resources. Id.


  1. Applicant Charbonneau’s bail was raised as a result of his continued requests for appointed counsel. Charbonneau has the right to have his request for counsel evaluated according to Texas law and the Dallas County indigent defense plan. Charbonneau’s incarceration, which is the result of his request for appointed counsel, is illegal.


RELIEF REQUESTED


WHEREFORE, applicant respectfully requests that the Court grant this application for writ of habeas corpus and upon conclusion thereof reinstate applicant’s original bond. If the Court should require a hearing, Applicant requests that his attorneys be allowed to appear by telephone. Applicant further requests that the Court appoint him an attorney because he is indigent and cannot afford to hire an attorney.

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September 27, 2007 By ______________________________

_________________________________

On behalf of herself and attorney for Applicant:

TEXAS FAIR DEFENSE PROJECT

Harry Williams IV, SBOT # 24053551

510 South Congress Avenue, Suite 208

Austin, TX 78704

Telephone (512) 637-5223 (office)

(206) 769-1772 (mobile)

Facsimile (512) 637-5224




 

AFFIDAVIT


BEFORE ME, the undersigned authority, on this day personally appeared____________________________, who after being duly sworn stated:

“I have read the foregoing application for writ of habeas corpus and swear that the allegations of fact contained therein are true and correct, according to my belief.”


_________________



SUBSCRIBED AND SWORN TO BEFORE ME on the September, 2007.



Notary Public in and for

_________________ County, Texas



Cause F07-55395, F07-33596

§ IN THE CRIMINAL DISTRICT In re Joey CHARBONNEAU § COURT No. 2,

§ DALLAS COUNTY, TEXAS


ORDER ISSUING WRIT OF HABEAS CORPUS

This ____ day of _____________, 2007, came to be heard the Petition for Writ of Habeas Corpus by Applicant, JOEY CHARBONNEAU, and the Court having considered the same finds that the Writ should be issued.

It is therefore, ORDERED, ADJUDGED AND DECREED that a Writ be issued directing that Applicant Joey Charbonneau have his bond reinstated and that Lupe Valdez, Sheriff of Dallas County, Texas, release Applicant pursuant to that bond.



________________________________

JUDGE PRESIDING