                                                                              ACCEPTED
                                                                          06-15-00121-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                    12/28/2015 3:22:13 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

                   No. 06-15-00121-CR

                                             FILED IN
                                      6th COURT OF APPEALS
           IN THE COURT OF APPEALS      TEXARKANA, TEXAS
                                      12/28/2015 3:22:13 PM
        FOR THE SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
                                               Clerk



                   BILLY JOE SELMAN

                         Appellant

                            VS.

                 THE STATE OF TEXAS

                         Appellee


                  BRIEF OF APPELLEE


On Appeal from the County Court at Law of Hill County, Texas
                  in Cause No. M0890-14.
                 Hon. Matt Crain, Presiding




          ORAL ARGUMENT NOT REQUESTED
              STATEMENT REGARDING ORAL ARGUMENT


      Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.7, the State

waives oral argument in this case unless this Court determines that oral argument is

necessary. The State believes that the facts and legal arguments are adequately

presented in the briefs and record, and that the decision process would not be

significantly aided by oral argument.

                     IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of the

names of all interested parties follows:

Presiding Judge at Trial
   • The Honorable Matt Crain (pretrial and trial), County Court at Law, Hill
      County, Texas.

Attorneys for the State
   • Hon. R. David Holmes (trial and appeal), County Attorney for Hill County,
      P.O. Box 253, Hillsboro, Texas 76645.

Attorneys for Appellant
   • Mr. Scott Phillips (trial), 711 W. Elm, Hillsboro, Texas 76645.
   • Mr. Richard De Los Santos (appeal), 202 S. Main Street, Cleburne, Texas
      76033.

Appellant
  • Billy Joe Selman




                                           ii
                        TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT……………………………...ii

LIST OF INTERESTED PARTIES………………………………………………..ii

TABLE OF CONTENTS………………………………………………………….iii

INDEX OF AUTHORITIES……………………………………………................iv

STATEMENT OF THE CASE…………………………………………………….1

STATEMENT OF FACTS…………………………………………………………1

SUMMARY OF ARGUMENT…………………………………………………….4

ARGUMENT

    I. The Court did not err in denying Appellant’s
       request to represent himself……………………………………………….4

    II. The State did not fail to prove the elements of Evading Arrest
       and there was no Fourth Amendment Violation………………………….7

    III. The State did not violate a Discovery request under 39.14……………...9

CONCLUSION…………………………………………………………………...12

CERTIFICATE OF COMPLIANCE……………………………………………...13

CERTIFICATE OF SERVICE……………………………………………………14




                                   iii
                       INDEX OF AUTHORITIES

CASES

Bekendam v. State,
     441 S.W.3d 295 (Tex. Crim App. 2014)………………………………….7, 8

Cain v. State,
      947 S.W.2d 262 (Tex. Crim. App. 1993)……………………………………8

Collier v. State,
      959 S.W.2d 621 (Tex. Crim. App. 1997)…………………………………4, 5

Faretta v. California,
      422 U.S. 806 (1975)………………………………………………………4, 5

Garza v. State,
     126 S.W.3d 79 (Tex. Crim. App. 2004)…………………………………..7, 8

Godinez v. Moran,
     509 U.S. 389 (1993)…………………………………………………………5

Gowan v. State,
    927 S.W.2d 246 (Tex. App.—Fort Worth 1996, pet. ref’d)…………………9

Hulit v. State,
       982 S.W.2d 431 (Tex. Crim. App. 1998)……………………………………9

Kinnamon v. State,
     791 S.W.2d 84 (Tex. Crim. App. 1990)………………………......................9

Little v. State,
       758 S.W.2d 551 (Tex. Crim. App. 1988)……………………………………9

Marin v. State,
     851 S.W.2d 275 (Tex. Crim. App. 1993)…………………………………....8

Moor v. State,
     371 S.W.3d 221 (Tex. Crim. App. 2012)……………………………………7


                                    iv
Nelson v. State,
      626 S.W.2d 535 (Tex. Crim. App. 1981)…………………………………7, 8

Taylor v. State,
      93 S.W.3d 487 (Tex. App.—Texarkana 2002, pet. ref’d)…………………10

Williams v. State,
      995 S.W.2d 754 (Tex. App.—San Antonio, no pet.)………………………10

Wilson v. State,
      311 S.W.3d 452 (Tex. Crim. App. 2010)……………………………………7

STATUES

U.S. CONST. amend. IV…………………………………………………………8, 9

U.S. CONST. amend. VI…………………………………………………………….4

U.S. CONST. XIV § 1……………………………………………………………….4

TEX. CODE CRIM. PROC. ANN. art. 1.051 (West 2013)…………………………..5, 6

TEX. CODE CRIM. PROC. ANN. art 39.14 (West 2013)……………………...9, 10, 11

TEX. R. APP. Rule 33.1 (West 2013)………………………………………………..7




                                 v
                            STATEMENT OF CASE

      Mr. Billy Joe Selman, hereinafter “the Appellant,” was arrested for the crime

of “Evading Arrest or Detention” on September 9th, 2013, in Hubbard, Hill

County, Texas. An Information and Complaint for the offense was filed with the

Hill County District Clerk’s Office on November 26th, 2014. Appellant’s case

came to trial on May 19th, 2015, in the Hill County Court at Law with the

Honorable Matt Crain presiding. A jury found Appellant guilty of the alleged

crime, and the trial court assessed punishment of eight months in the county jail,

with credit for any time already served. Appellant timely filed an appeal on May

29th, 2015, which is now before this Court.



                           STATEMENT OF FACTS

      On September 9th, 2013, Officer Darlin Lebel of the Hubbard Police

Department was dispatched to 609 Farm-to-Market Road 2114 in Hubbard, Hill

County, Texas, at about 7:27am in response to a criminal trespass call. (VI R.R. at

86-87, 104). It was light outside already, and Officer Lebel was wearing her

standard issue police uniform, with patches and gold badge affixed, and she was

driving her police squad car that had “Hubbard Police” printed on both sides of the

vehicle, with an emergency light-bar affixed on top (VI R.R. at 85-86, 104-105).

Due to the small size of the community of Hubbard, Texas, Officer Lebel was


                                          1
personally familiar with Appellant’s appearance and the property of Mr. Shawn

Gilham, where she was dispatched on the morning of September 9th, 2013. (VI

R.R. at 88-89, 95). When she arrived at the Gilham residence at 609 FM 2114, she

saw Appellant towards the back of the property, crouched low to the ground,

digging in the dirt. (VI R.R. at 87). Knowing that the property was not Appellant’s

due to her familiarity with the area, and in response to being dispatched for a

“criminal trespass” call, she exited her vehicle and began to approach Appellant on

foot. (VI R.R. at 90). Hubbard Police Department’s Policy for “criminal trespass”

calls is to issue a warning citation that needs to be signed by recipient of the

warning. (VI R.R. at 98). When she approached Appellant on foot at the Gilham

property, Appellant stared at her and kept digging in the dirt. (VI R.R. at 90).

      When Appellant would not stop digging, Officer Lebel instructed him to

stop, but in response to her order, he got up and ran away from her. (VI R.R. at

91). She saw him run towards, and get into a vehicle she knew belonged to

Appellant’s sister, Robin Selman; Officer Lebel had also seen the Appellant

previously drive around Hubbard, Texas, inside the same vehicle. (VI R.R. at 92).

Officer Lebel then pursued Appellant in her squad car to his residence, where she

saw Appellant run inside a house she knew to be his and his mother’s residence.

(VI R.R. at 93-94). Because Appellant would not open the door at her request,

Officer Lebel contacted the homeowner and co-tenant of the property Linda


                                           2
Selman, Appellant’s mother. (VI R.R. at 99-100, 116). Linda Selman subsequently

gave consent to Chief Patrick of the Hubbard Police Department to enter her home.

(VI R.R. at 117). Once inside, Chief Patrick announced who he was several times

(each time he entered a new room inside the house), but received no response from

Appellant. (VI R.R. at 125-126). Appellant was subsequently found hiding within

a closet with a blanket covering his body. Once found, Appellant was arrested for

evading arrest or detention. (VI R.R. at 125-126).




                                         3
                          SUMMARY OF ARGUMENT

      All three of Appellant’s Points of Error should be overruled. Appellant’s

First Point of Error should be overruled because the Appellant withdrew his own

waiver of counsel after he was admonished of the dangers of self-representation.

Appellant’s Second and Third Points of Error should be overruled because they

were not properly preserved at the trial court level. Additionally, Appellant’s

Third Point of Error should be overruled because even if it had been properly

preserved, the State did not violate an order compelling discovery under Article

39.14 of the Texas Code of Criminal Procedure.

                                   ARGUMENT

I. Appellant’s First Point of Error should be overruled because the trial court
did not err in denying Appellant’s request to represent himself after
Appellant withdrew his waiver of counsel.

      Appellant’s First Point of Error should be overruled because after the trial

court admonished Appellant of the dangers of self-representation, Appellant

withdrew his waiver of counsel. 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.

Collier v. State, 959 S.W.2d 621, 625-26 (Tex. Crim. App. 1997) citing Faretta v.

California, 422 U.S 806, 807–808 (1975). Those same amendments also guarantee

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


                                           4
Such a decision, to be constitutionally effective, must be made (1) competently, (2)

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

U.S. 389, 400–401 (1993); Faretta, 422 U.S. at 834–836. 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, 422 U.S. at 834–

836. The decision is made “voluntarily” if it is uncoerced. Godinez, 509 U.S. at

401 n. 12.

      Article 1.051 of the Texas Code of Criminal Procedure proscribes that if “a

defendant wishes to waive the right to counsel for purposes of entering a guilty

plea or proceeding to trial, the court shall advise the defendant of the nature of the

charges against the defendant and, if the defendant is proceeding to trial, the

dangers and disadvantages of self-representation.” Tex. Code Crim. Proc. Ann.

Art. 1.051(g) (West 2013). If the wavier is made voluntarily and intelligently, then

“the court shall provide the defendant with a statement substantially in the

following form, which, if signed by the defendant, shall be filed with and become

part of the record of the proceedings.” Id.

      I have been advised this ____ day of _______, 2____, by the (name of court)
      Court of my right to representation by counsel in the case pending against
      me. I have been further advised that if I am unable to afford counsel, one
      will be appointed for me free of charge. Understanding my right to have
      counsel appointed for me free of charge if I am not financially able to
      employ counsel, I wish to waive that right and request the court to proceed
                                           5
      with my case without an attorney being appointed for me. I hereby waive
      my right to counsel. (Signature of defendant). Id.


      However, a defendant may withdraw his waiver of the right to counsel at

any time. Tex. Code. Crim. Proc. Ann. Art. 1.051(h) (West 2013). In this

particular case, the Appellant signed and presented a waiver to the trail court

indicating that he either 1) wished to represent himself or 2) hire another attorney.

(VI R.R. at 9-10). Prior to the venire panel being qualified, the trial court inquired

into Appellant’s possible waiver of counsel that he submitted to the court. (VI R.R.

at 9-10). Appellant explained that he wanted to fire his current counsel to either

hire another attorney or proceed with the trial on his own. (VI R.R. at 10).

Appellant cited dissatisfaction with his trial counsel as his reason for wanting to

hire another attorney or proceed on his own. (VI R.R. at 11-12). The trial court

informed him that his trial counsel had prepared oral motions and a voir dire

presentation for the trial. (VI R.R. at 12). The trial court also admonished

Appellant of the dangers and difficulties of self-representation, particularly that he

would be expected to know the rules of evidence and procedure. (VI R.R. at 10-

11). Having been fully admonished, the Appellant withdrew his waiver:

      Reporter Record Volume VI, Page 12, Line 13
      Trial Court: …Are you okay with going forward today with him as your
      assisted—him as your attorney?
      Appellant: I’ll allow due process the opportunity to work, yes, sir.
      Trial Court: Okay. So you’re okay with Mr. Phillips representing you today.
      Appellant: Today, yes.
                                           6
      As there is nothing within the record indicate that Appellant was threatened,

coerced, or deceived by either the trial court or any other party into withdrawing

his waiver of counsel, his withdrawal of the waiver appears to have been made

knowingly and intelligently after the appropriate admonishments from the trial

court. Having withdrawn his waiver, the trial court could not grant Appellant’s

waiver of counsel without violating his right to counsel. Therefore, Point of Error

One should be overruled.



II. Appellant’s Second Point of Error should be overruled because it was not
preserved.

      Appellant’s Second Point of Error should be overruled because it was not

preserved at the trial court level. A party that intends to appeal an error made at

the trial court level must adequately preserve each claim of error by appropriate

action in the trial court. Tex. R. App. Proc. Ann. 33.1 (West 2013); Bekendam v.

State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014); Wilson v. State, 311 S.W.3d

452 (Tex. Crim. App. 2010). If claimed error is not preserved, it may not be

reviewed on appeal. Moore v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012). To

preserve error, the record must show that appellant made a timely request,

objection, or motion, and that the trial court ruled on it. Garza v. State, 126 S.W.3d

79, 81-82 (Tex. Crim. App. 2004); Tex. R. App. Proc. 33.1(a)(1); Nelson v. State,
                                          7
626 S.W.2d. 535, 536 (Tex.Crim.App.1981). The purpose of requiring an

objection is to give to the trial court or the opposing party the opportunity to

correct the error or remove the basis for the objection. Bekendam v. State, 441

S.W.3d 295, 299 (Tex. Crim. App. 2014). By affording the judge an opportunity

to rule on an objection, the court is able to decide whether the evidence is

admissible. Garza, 126 S.W.3d at 82. No such opportunity was afforded the trial

court nor the State in Appellant’s case, as there was no written or oral motion to

suppress argued by Appellant based upon a Fourth Amendment violation in the

instant case.

      Though there were objections made based upon possible Crawford

violations and hearsay statements, none were made about the lawfulness of the

arrest of Appellant under the Fourth Amendment. Additionally, there is no

argument by Appellant that this issue involves one of the two categories of errors

that could constitute either “absolute rights” or “waivable-only rights” under Marin

v. State that could justify this Court considering it for the first time on appeal.

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) overruled in part by Cain

v. State, 947 S.W.2d 262, 265 (Tex. Crim. App. 1997) (overruling Marin insofar as

it suggests that absolute rights are, by their nature, immune from harmless error

analysis).




                                            8
      Moreover, rights under the Fourth Amendment have been found to be one of

the many rights that fall within the “forfeitable rights” category under Marin that

requires preservation of error at the trial court level before being considered on

appeal. Hulit v. State, 982 S.W.2d 431, 440 (Tex. Crim. App. 1998) citing Little v.

State, 758 S.W.2d 551, 564 (Tex.Crim.App.1988). Because Appellant did not

adequately preserve error on this issue of an alleged Fourth Amendment violation

by objecting to the legality of his arrest during trial or during a pre-trial hearing,

Appellant’s Second Point of Error should be overruled.



III. Appellant’s Third Point of Error should be overruled because the State
did not violate a Discovery Order under Article 39.14 of the Code of Criminal
Procedure and Appellant did not preserve his Third Point of Error.


      Appellant’s Third Point of Error should be overruled because Appellant did

not adequately preserve this error for appeal. First, there is nothing in the record to

indicate that the trial court ever issued an order compelling discovery from the

State under Article 39.14 of the Code of Criminal Procedure. Second, had the trial

court issued a discovery order under Article 39.14, Appellant waived this issue on

appeal when defense counsel did not object during trial and move for a

continuance after the allegedly-withheld evidence was referenced during trial.

Prior to the enacting of the Michael Morton Act, defendants in Texas did not enjoy

a general right to discovery upon a written request to the State. See Gowan v. State,
                                            9
927 S.W.2d 246, 249 (Tex. App.—Fort Worth 1996, pet. ref’d) citing Kinnamon v.

State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990). In 2013, Article 39.14 of the

Texas Code of Criminal Procedure proscribed a conditional right to discovery for

certain materials within the possession of the State only after a motion from the

defendant and a subsequent order from the trial court:

      (a) Upon motion of the defendant showing good cause therefor and upon
      notice to the other parties, except as provided by Article 39.15, the court in
      which an action is pending shall order the State before or during trial of
      a criminal action therein pending or on trial to produce and permit the
      inspection and copying or photographing by or on behalf of the defendant of
      any designated documents, papers, written statement of the defendant,
      (except written statements of witnesses and except the work product of
      counsel in the case and their investigators and their notes or report), books,
      accounts, letters, photographs, objects or tangible things not privileged,
      which constitute or contain evidence material to any matter involved in the
      action and which are in the possession, custody or control of the State or any
      of its agencies. The order shall specify the time, place and manner of
      making the inspection and taking the copies and photographs of any of the
      aforementioned documents or tangible evidence; provided, however, that the
      rights herein granted shall not extend to written communications between
      the State or any of its agents or representatives or employees. Nothing in
      this Act shall authorize the removal of such evidence from the possession of
      the State, and any inspection shall be in the presence of a representative of
      the State.

Tex. Code. Crim. Proc. Ann. art. 39.14 (West 2013) (emphasis added). When

previously withheld evidence is disclosed at trial in violation of a discovery order,

the defendant has an opportunity to request a continuance on the basis of that

violation. Taylor v. State, 93 S.W.3d 487, 502 (Tex. App.—Texarkana 2002, pet.

ref’d). However, failure to request a continuance waives any violation of a


                                          10
discovery order. Id. citing Williams v. State, 995 S.W.2d 754, 762 (Tex. App.—

San Antonio, no pet.).

      In this particular case, though trial counsel for the Appellant did request

discovery from the State, counsel never filed a motion with the trial court

requesting that the State be ordered to produce items listed in the discovery

request. The trial court even invited defense counsel during a pre-trial status

hearing to confer with the State on February 10th, 2015, on items that had been

produced, and items that had not. (III R.R. at 4). At no point during this status

hearing, before trial, or during trial, did defense trial counsel move for the trial

court to order discovery under Article 39.14. Moreover, even had the trial court

ordered discovery from the State, Appellant waived any alleged discovery order

violations by not objecting during trial. As Appellant cited in his brief, when

defense trial counsel elicited testimony from Officer Lebel during cross-

examination that her squad car was equipped with a dash-mounted camera at the

time of Appellant’s arrest, there was no objection or motion for continuance on the

basis of previously withheld evidence. (VI R.R at 106-108) Without an order from

the trial court under Article 39.14 as it existed in 2013, much less an objection by

the Appellant during trial for an alleged violation of such a discovery order, such

an issue is waived on appeal. Therefore, Appellant’s Third Point of Error should

be overruled.


                                           11
                                  CONCLUSION

      It is respectfully submitted that all three points of error be overruled and the

conviction should be affirmed.



                                                     Respectfully submitted,




                                                       ____/s/R. David Holmes____
                                                          R. David Holmes
                                                          State Bar No: 24035160
                                                          County Attorney
                                                          Hill County, Texas
                                                          P.O. Box 253
                                                          Hillsboro, TX 76645
                                                          254-582-4047
                                                          Fax: 254-582-4013
                                                          dholmes@co.hill.tx.us




                                          12
                     CERTIFICATE OF COMPLIANCE

      I certify that the State’s brief contains 2,709 words in compliance with Rule

9.4 of the Texas Rules of Appellate Procedure.




                                                   _____/s/ R. David Holmes____




                                        13
                         CERTIFICATE OF SERVICE

      I certify that a copy of the State’s Response Brief has been e-filed and sent

by regular mail on December 28, 2015, to the attorney for Appellant at the

following address:



ATTORNEY FOR APPELLANT

Richard De Los Santos
202 S. Main Street
Cleburne, Texas 76033




                                                    _____/s/ R. David Holmes____




                                         14
