Case Information

*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 2/27/2015 11:04:26 AM CATHY S. LUSK Clerk *1 ACCEPTED 12-14-00069-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 2/27/2015 11:04:26 AM CATHY LUSK CLERK No. 12-14-00069-CR

IN THE TYLER COURT OF APPEALS TWELFTH JUDICIAL DISTRICT OF TEXAS JASON WAYNE FRIZZELL Appellant,

v.

THE STATE OF TEXAS

Appellee On appeal From the

349 TH Judicial District Court, Houston County, Texas Trial Cause No. 13CR-183 BRIEF FOR THE APPELLEE Donna G. Kaspar District Attorney for Houston County 401 E. Houston Ave., Basement Floor Crockett, Texas 75835 (936) 544-3255 x 245 (936) 544-2790 (FAX) SBOT# 00785201 *2 IDENTITY OF PARTIES AND COUNSEL APPELLANT:

JASON WAYNE FRIZZELL

ATTORNEY FOR APPELLANT

Stephen Evans

1000 N. Church St.

Palestine, Texas 75802

ATTORNEY FOR APPELLEE

Donna Gordon Kaspar, District Attorney

401 E. Houston Ave., Basement Floor

Crockett, Texas 75835

TABLE OF CONTENTS

Page Table of Contents 3

Index of Authorities 4

Issues Presented 6

Statement of Facts 6

Issue Number One Restated 7

Summary of the Argument 7

Argument 7

Issue Number Two Restated 10

Summary of the Argument 11

Argument 11

Prayer 12

Certificate of Service 13

Certificate of Word Compliance 13

INDEX OF AUTHORITIES Page Cases

Blankenship v. State , 673 S.W.2d 578, 583 (Tex. Crim. App.

1984) 8

Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) 11, 12

Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed.

2d 562 (1975) 7,8,9

Godinez v. Moran , 509 U.S. 389, 113 S. Ct. 2680, 2687,

125 L. Ed. 2d 321 (1993) 8

Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979) 11

United States v. Wilson , 666 F.2d 1241 (9th Cir. Nev. 1982) 10

Statutes

Tex. Code Crim. Proc. art. 1.051 8

No. 12-14-00069-CR IN THE TYLER COURT OF APPEALS TWELFTH JUDICIAL DISTRICT OF TEXAS JASON WAYNE FRIZZELL, Appellant

vs.

THE STATE OF TEXAS,

Appellee On appeal From the

349 th Judicial District Court, Houston County, Texas Trial Cause No. 13CR-183 BRIEF FOR THE APPELLEE TO THE HONORABLE TYLER COURT OF APPEALS:

NOW COMES, Donna Gordon Kaspar, District Attorney for Houston County, and respectfully submits her Brief for the Appellee, requesting that

this Court affirm the judgment of the Trial Court.

ISSUES PRESENTED 1. Appellant knowingly and intelligently relinquished his right to an attorney and, in doing so, relinquished other benefits such as legal research materials. Due process was not thwarted in this case by the trial court agreeing to allow Appellant to represent himself after giving numerous admonishments under Faretta .

2. The evidence presented by the State provided legally sufficient evidence to support the jury’s verdict of guilt. STATEMENT OF FACTS Appellant was tried and convicted of Injury to a Child. Appellant had a previous felony conviction that was used to enhance the 3 rd

Degree Felony Injury to a Child to a 2 nd Degree Felony. The appellant

represented himself at trial. Appellant began filing pro se motions

before the indictment had been handed down. (C.R. pp. 9-19, 22-24).

After Appellant was indicted, the trial court conducted a hearing

wherein she thoroughly admonished Appellant. (Sup.R.R. Vol. 2).

Appellant continued to insist that he be allowed to represent himself

and he insisted that he should be given access to a law library without

having to accept an appointed attorney. At trial, the victim,

Appellant’s nephew, testified that Appellant hit him in the chest which

knocked him to the ground. He also testified that it hurt, left a red

mark on his chest and caused difficulty in breathing for a period of

time. (R.R., Vol. 3, pp. 142 -146, 152-153, 163-164, 183,187, 195-

197, 199, 206). Appellant left the scene after he struck his nephew

and was later apprehended.

ISSUE NUMBER ONE Appellant knowingly and intelligently relinquished his right to an attorney and, in doing so, relinquished other benefits such as legal

research materials. The trial court, under Faretta, was required to

allow Appellant to represent himself after giving the appropriate

admonishments.

SUMMARY OF THE ARGUMENT The availability of legal assistance is a constitutionally permissible means of access to research. When adequate access is

provided, the accused may not reject the method provided and insist

on an avenue of his or her choosing.

ARGUMENT The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right

to the assistance of counsel before he can be validly convicted and

punished for any felony. Faretta v. California, 422 U.S. 806, 95 S. Ct.

2525, 45 L. Ed. 2d 562 (1975) . Those amendments also guarantee

that any such defendant may dispense with counsel and make his own

defense. Faretta , 95 S. Ct. at 2533. Such a decision, to be

constitutionally effective, must be made (1) competently, (2)

knowingly and intelligently, and (3) voluntarily. Godinez v. Moran , 509

U.S. 389, 113 S. Ct. 2680, 2687, 125 L. Ed. 2d 321 (1993); Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see

also Tex. Code Crim. Proc. art. 1.051. The decision to waive counsel

and proceed pro se is made "knowingly and intelligently" if it is made

with a full understanding of the right to counsel, which is being

abandoned, as well as the dangers and disadvantages of self-

representation. Faretta v. California , 95 S. Ct. at 2541. The decision is

made "voluntarily" if it is uncoerced. Godinez v. Moran , 113 S. Ct. at

2687.

The record must reflect that the trial court thoroughly admonished the defendant. Faretta v. California , 95 S.Ct. at 2541;

Blankenship v. State , 673 S.W.2d 578, 583 (Tex. Crim. App. 1984).

The Clerk’s Record shows that Appellant expresses his wish to represent himself before the indictment had been handed down. (C.R.

pp. 9-19, 22-24). After Appellant was indicted, the trial court

conducted a hearing wherein she thoroughly admonished Appellant.

(Sup.R.R., Vol. 2, pp. 4-11). The record reflects that, before the trial

court granted appellant's request to proceed pro se , it first elicited

from him the fact that he wanted to represent himself. (Sup.R.R., Vol.

2, p. 4). It then explained to him that it was not smart to represent

himself. The court also explained to him that there were technical rules

of evidence and procedure that applied at trial, that he would not be

granted any special consideration with respect to those rules, and that

as a result he might be disadvantaged both at trial and in any appeal

that might follow. (Sup.R.R., Vol. 2, pp. 5-11). The trial court told the

appellant that she could appoint him an attorney and Appellant told

the judge that he did not want one. (Sup.R.R., Vol. 4, p. 20). Finally,

the record reflects that the trial court tried repeatedly to impress upon

appellant the extreme gravity of his request to proceed pro se and the

likelihood that it was a serious mistake. (Sup.R.R., Vol. 2, pp. 4-11;

Vol. 3, pp. 4-24; Vol. 4, pp. 9-26). Based on the record, then, it

cannot be said that appellant's decision to proceed pro se was

anything less than knowing and intelligent. Nor is there anything in the

record indicating that appellant's decision was anything less than

voluntary. The trial court, therefore, did not thwart due process by

allowing Appellant to proceed without an attorney appointed to

represent him.

By choosing to represent himself, Appellant gave up the right to research materials. The Supreme Court, in Faretta , specifically

recognized that a criminal defendant who exercises his right to reject

counsel necessarily relinquishes many of the benefits associated with

representation by counsel. Nowhere did the Faretta Court suggest

that the Sixth Amendment right to self-representation implies further

rights to materials, facilities, or investigative or educational resources

that might aid self-representation. The Ninth Circuit U.S. Court of

Appeals declined to interpret the right to self-representation under the

Sixth Amendment to include a right to conduct one's own research.

United States v. Wilson , 666 F.2d 1241 (9th Cir. Nev. 1982). That

Court said that the availability of legal assistance is a constitutionally

permissible means of access to research and that when adequate

access is provided, the accused may not reject the method provided

and insist on an avenue of his or her choosing. Id. at 1353. That is

exactly what Appellant has done in this case. The trial court explained

more than once that Appellant’s access to research materials came

through an appointed attorney. (Sup.R.R., Vol. 3, p. 6; Vol. 4, pp.

9,13,19,20,22). After hearing the explanation, Appellant repeatedly

rejected access through an attorney and insisted on being provided a

law library. There has been no violation of due process and the Court

should deny Appellant’s Issue Number One.

ISSUE NUMBER TWO The evidence presented by the State provided legally sufficient evidence to support the jury’s verdict of guilt.

SUMMARY OF THE ARGUMENT The appropriate standard for review of factual sufficiency of the elements of the offense is now the same standard used for legal

sufficiency found in Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979). Brooks v. State , 323 S.W.3d 893 (Tex. Crim.

App. 2010).

ARGUMENT The Court of Criminal Appeals overruled Clewis in Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010). The appropriate

standard for review of factual sufficiency of the elements of the offense

is now the same standard used for legal sufficiency found in Jackson v.

Virginia , 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010). That

standard requires the Court to view the evidence “in the light most

favorable to the verdict” and thus defer to the jury’s credibility and

weight determinations because the jury is the sole judge of the

witnesses’ credibility and the weight to be given their testimony.

Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010). The Court in

Brooks found that the only way to retain a factual-sufficiency standard,

which would be meaningfully distinct from a Jackson v. Virginia legal-

sufficiency standard, would be to allow reviewing courts to sit as

“thirteenth jurors.” The Court noted that their factual-sufficiency

decisions have consistently declined to do that. Brooks v. State , 323

S.W.3d 893, 906 (Tex. Crim. App. 2010).

Viewing the evidence in the light most favorable to the verdict this Court must find that there is factually sufficient evidence to

sustain the jury’s verdict of guilt. The jury had evidence of each

element of the offense of Injury to a Child. The testimony of Jeremy

Frizzell, Jr. proved that Appellant intentionally or knowingly caused

bodily injury to him by hitting him and that he was younger than 14

years of age at the time. Jeremy testified that Appellant hit him in the

chest which knocked him to the ground. He also testified that it hurt,

left a red mark on his chest and caused difficulty in breathing for a

period of time. (R.R., Vol. 3, pp. 142 -146, 152-153, 163-164,

183,187, 195-197, 199, 206).

PRAYER WHEREFORE, PREMISES CONSIDERED, the State respectfully prays that the Court affirm the judgment of the Trial Court in this Donna G. Kaspar

cause.

Respectfully Submitted, ____________________________ Donna G. Kaspar District Attorney for Houston County 401 E. Houston Ave.

Crockett, Texas 75835 (936) 544-3255 x 245 (936) 544-2790 (FAX) SBOT# 00785201 Donna G. Kaspar

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Appellee’s Brief was served on counsel of record on this the

_____ day of __________, 2015.

______ _______________________ Donna G. Kaspar Donna G. Kaspar CERTIFICATE OF WORD COMPLIANCE District Attorney, Donna Gordon Kaspar, on this the 27 th day of February, 2015, hereby certifies this document has 1918 word count,

including captions and table of contents.

___________________________ Donna G. Kaspar