                                                                  ACCEPTED
                                                              06-15-00131-CR
                                                   SIXTH COURT OF APPEALS
                                                         TEXARKANA, TEXAS
                                                       12/15/2015 12:20:33 PM
                                                             DEBBIE AUTREY
                                                                       CLERK

        No. 06-15-00131-CR

                In the                        FILED IN
                                       6th COURT OF APPEALS
          Court of Appeals               TEXARKANA, TEXAS
                                      12/15/2015 12:20:33 PM
    Of the Sixth Appellate District        DEBBIE AUTREY
                                               Clerk

        Of the State of Texas

   __________________________



          Melissa Jean Pool

                  v.

         The State of Texas

   __________________________

Appeal from Cause No. 2015-0550-CR2

  In the County Court at Law No. 2

    Of McLennan County, Texas

   __________________________

        Brief for Appellant
   __________________________

         Christopher L. King
       100 N. 6th St., Suite 902
          Waco, TX 76701
          SBN: 24088864
      Telephone: 254-717-8600
     Email: callahankinglaw.com
       Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL

Appellant
Melissa Jean Pool

      By:   Christopher L. King
            Callahan & King, P.L.L.C.
            100 N. 6th St., Suite 902
            Waco, TX 76701
            Telephone: 254-717-8600
            SBN: 24088864
            Email: callahankinglaw@gmail.com

Appellee
The State of Texas

      By:   Abel Reyna
            Criminal District Attorney, McLennan County
            219 N. 6th St., Suite 200
            Waco, TX 76701
            Telephone: 254-757-5084
            SBN: 24000087




                                                          i
TABLE OF CONTENTS

Identity of Parties and Counsel   i

Table of Contents                 ii

Index of Authorities              iii

Preliminary Statement             1

Point of Error No. 1              2

    Statement of Facts            2

    Summary of Argument           2

    Argument                      2

    Conclusion                    6

Prayer for Relief                 6




                                        ii
INDEX OF AUTHORITIES
CASE LAW                                                            Page

Blankenship v. State, 673 S.W.2d 578 (Tex. Crim. App. 1984)         2, 3

Faretta v. California, 422 U.S. 806 (1975)                          3

Fernandez v. State, 283 S.W.3d 25 (Tex. App.—San Antonio 2009, no   3, 4
pet).

Goffney v. State, 843 S.W.2d 583 (Tex. Crim. App. 1992)             3, 6

Grant v. State, 255 S.W.3d 642 (Tex. App.—Beaumont 2007, no pet)    4

Martin v. State, 630 S.W.2d 952 (Tex. Crim. App. 1982)              3


CONSTITUTIONS

Tex. Const. art. I, § 10.                                           2

STATUTES

Tex. Code Crim. Proc. Ann. § 1.051.                                 2




                                                                        iii
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Comes now Melissa Jean Pool, hereinafter referred to as appellant, and

submits this brief pursuant to the provisions of the Texas Rules of Appellate

Procedure in support of his/her request for a new trial in appellate Cause No. 06-

15-00131-CR.


                        PRELIMINARY STATEMENT

      On June 30, 2015, in the County Court at Law No. 2of McLennan County,

the Honorable Thomas Bradley Cates presiding, the appellant was convicted by a

jury of the offense of interference with public duties after a plea of not guilty.

The punishment was assessed by the court at thirty days incarceration in the

county jail. The prosecuting attorney was Mr. Aubrey Robertson and appellant

appeared pro se. The trial court appointed Mr. Christopher L. King as stand-by

counsel.




                                                                                     1
Point of Error No. 1: The trial court erred by inadequately admonishing
Defendant regarding self-representation on the record, and thus failed to
ensure that Defendant’s waiver of counsel was competently, knowingly, and
voluntarily made

I.     Statement of Facts

       Defendant was present for several pre-trial hearings and throughout trial,

but the reporter’s record from these proceedings does not contain any significant

admonishment related to the dangers of self-representation or inquiry into her

capacity to represent herself. (R.R., Vol. II, p. 1; R.R. Supp., Vol. I, p. 1)

II.    Summary of argument

       The record does not reflect that the trial court judge adequately

admonished Defendant on the dangers of self-representation, and thus

Defendant’s waiver of counsel was not made knowingly and voluntarily. This

violates Defendant’s Sixth Amendment right to counsel. An objection to this

error need not be raised at trial, and prejudice is presumed.

III.   Argument

       The Sixth Amendment and Fourteenth Amendment to the United States

Constitution guarantee the right to counsel to a person facing potential

imprisonment in a criminal case. Blankenship v. State, 673 S.W.2d 578, 582

(Tex. Crim. App. 1984). The Texas state constitution guarantees the right to

counsel. Tex. Const. art. I, § 10. The Texas Legislature has also provided a

statutory right to counsel. Tex. Code Crim. Proc. Ann. § 1.051.

                                                                                    2
      Criminal defendants also have a constitutional right to represent

themselves without the assistance of counsel. Blankenship, 673 S.W.2d at 582.

To invoke his right to self-representation a defendant “should be made aware of

the dangers and disadvantages of self-representation.” Faretta v. California, 422

U.S. 806, 835 (1975). The record must establish that “he knows what he is

doing, and his choice is made with his eyes open.” Id. The trial court is

responsible for making sure that the record fully shows that the defendant’s

waiver of counsel is made with a clear understanding of the consequences of

self-representation. Martin v. State, 630 S.W.2d 952, 954 n.4 (Tex. Crim. App.

1982).

      While there is not a specific requirement that the trial court inquire into a

defendant’s age, education, background, or mental health history, “the record

must contain proper admonishments concerning pro se representation and any

necessary inquiries of the defendant so that the trial court may make an

assessment of his knowing exercise of the right to defend himself.” Goffney v.

State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992) (emphasis in original).

Presuming waiver from a silent record is impermissible. Id. Indeed, “courts

indulge every reasonable presumption against the validity of a waiver of

counsel.” Fernandez v. State, 283 S.W.3d 25, 28 (Tex. App.—San Antonio

2009, no pet). The admonishments should be given even if standby counsel is


                                                                                      3
appointed. Grant v. State, 255 S.W.3d 642, 647 (Tex. App.—Beaumont 2007, no

pet).

        Additionally, when a trial court fails to sufficiently admonish a defendant

on the dangers of self-representation on the record, the defendant’s waiver of

counsel is invalid. Fernandez, 283 S.W.3d at 31. An invalid waiver results in a

denial of the constitutional right to counsel. Id. Because this is a structural

defect, prejudice is presumed, and this is reversible error not subject to a harm

analysis. Id.

        The record in this matter does not contain adequate admonishments

regarding the dangers of self-representation. The clerk’s record contains a

written waiver of counsel form signed by the defendant on April 15, 2015. (C.R.,

Vol. I, p. 12) That document indicates that a hearing was held, but the reporter’s

record does not contain any information from that hearing. The reporter’s record

from the pre-trial hearing conducted on June 10, 2015 does not contain

admonishments regarding the dangers of self-representation as required by

Faretta. (R.R. Supp., Vol. I, p. 1)

        Similarly, the final pre-trial hearing did not contain adequate

admonishments either. The reporter’s record from the pre-trial hearing conducted

on June 25, 2015 indicates that the Assistant District Attorney (ADA)

prosecuting the case did not believe that the defendant was “competent” to


                                                                                      4
represent herself at trial. (R.R., Vol. II, p. 11) The ADA specifically enumerated

that he did not think the defendant even understood what she was charged with.

(R.R., Vol. II, p. 11) During that hearing the defendant indicated that she wanted

to attach a civil suit to the case. (R.R., Vol. II, p. 9) The Defendant indicated a

lack of understanding of the case or the consequences of self-representation, and

even the State’s representative agreed. In response to this, the judge decided to

appoint standby counsel and stated that it “is a dangerous practice” for a

defendant to represent himself. (R.R., Vol. II, p. 13) The judge mentioned that

loss of liberty could result from a conviction, (R.R., Vol. II, p. 14), but that is as

close as he came to admonishing the defendant about the consequences of self-

representation. The judge made no inquiry during this hearing into specific

attributes of the defendant such as her education, background, or mental health

history.

      At no point in the records before the Court was the defendant made aware

of the profound consequences of self-representation so that she could enter her

trial with her “eyes open” as required by the Supreme Court in Faretta. In the

record before this court, the trial court did not make any inquiry into the

defendant’s training, education, or experience with the legal system. In fact, the

defendant’s own conduct in trying to link a civil matter to this criminal case

demonstrated her lack of understanding.


                                                                                         5
IV.   Conclusion

      The court erred by not giving clear admonishments regarding the dangers

of self-representation and ensuring that the defendant’s waiver of counsel was

made knowingly and voluntarily. This error was not cured by the last-minute

appointment of standby counsel. As the Court of Criminal Appeals stated in

Goffney, “The record must show, or there must be an allegation and evidence

which must show, that an accused was offered counsel but intelligently and

understandingly rejected the offer. Anything less is not a waiver.” Goffney, 843

S.W.2d at 585.

                            PRAYER FOR RELIEF

      For the reasons herein alleged, the Appellant was denied a fair trial in this

case, and the judgment and sentence should be set aside and Appellant granted a

new trial.

                                 Respectfully submitted,


                                 ___/s/ Christopher L King____________________
                                 Christopher L King
                                 Attorney for Appellant
                                 State Bar No. 24088864
                                 One Liberty Place
                                 100 N. 6th Street, Suite 902
                                 Waco, Texas 76701
                                 Phone (254) 717-8600
                                 Fax (254) 313-3200
                                 Email: callahankinglaw@gmail.com


                                                                                      6
        I hereby certify that a true and correct copy of the above and foregoing
document has been sent via Electronic Mail to Abel Reyna, Criminal District
Attorney for McLennan County, on December 15, 2015.

__________/s/ Christopher L King_______________

Christopher L King




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