                                                                                               ACCEPTED
                                                                                           03-16-00048-CR
                                                                                                 14395716
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                     12/21/2016 9:54:56 AM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK
                     Cause No. 03-16-00048-CR
Barlow Smith,                                       In the Court of Appeals
Appellant                                                                 FILED IN
                                                                   3rd COURT OF APPEALS
      v.                                            for the   Third Judicial District
                                                                        AUSTIN,  TEXAS
                                                                   12/21/2016 9:54:56 AM
                                                                       JEFFREY D. KYLE
The State of Texas                                                          Clerk



      APPELLANT’S REPLY TO APPELLEE’S RESPONSE TO HIS MOTION FOR
                     RECONSIDERATION EN BANC
                          Procedure
      The State argues that Appellant’s Motion should be rejected as untimely.
When Appellant efiled his Motion on October 12, his server showed that it had
been received; and counsel for the State was served pursuant to the program of
the server. Appellant awaited court action. When he finally inquired of the clerk’s
office, he was told that a voice message had been left for him on November 29 that
the Motion had been rejected because it lacked proof of service and a word count.
He did not receive this message. Of course, if he had, he would have corrected the
deficiencies promptly, as he did immediately on December 12. On that day he re-
submitted his Motion with the appropriate corrections and without any other
alteration in the document. He was told by Mr. Kyle, the Clerk of Court, that a
motion for extension of time was not necessary because his filing on October
showed good faith compliance. Appellant asks the Court to rule accordingly.
                     Substance
The State argues that Appellant’s analysis of the rule regarding self-representation,
the “exception,” as counsel terms it, is erroneous because it has never been
validated by the United States Supreme Court or by Texas courts—not a valid
conclusion. It is only accurate to state that Appellant’s form of self-representation
has never been ruled on by these courts. Quoting Abraham Lincoln adds no
authority to the State’s argument.
Counsel further warns of repetitive abuse by conniving attorney-defendants should
Appellant’s analysis of the rule of self-representation be accepted. Appellant is
confident that this improbable speculation will not disrupt the Court’s orderly
disposition of this case.
Counsel for the State reiterates the assertion he made in the State’s Response to
Appellant’s Brief that Appellant argued facts not in evidence. Appellant will not
here repeat the arguments and authority made in his Reply Brief that counsel
misapprehended the unique jurisprudence laid down by the Texas Court of Criminal
Appeals: whether the facts, if true, establish ineffective representation of counsel;
if so, the case is remanded to the trial court to establish the facts as evidence for
proper review by the appellate court.
Most important is that the State’s arguments above obscure a crucial feature of
this case, that Appellant’s defense of himself was markedly impaired by the
cognitive and affective effects of medication prescribed by his physician consistent
with the scientific abstracts offered.
                   Conclusion
Appellant’s original submission of his Motion was made in good faith and would
have been timely but for formal deficits which he corrected immediately upon
being informed thereof.
The State offers no legal citation negating Appellant’s analysis regarding the self-
representation rule. Implementation of Appellant’s analysis of the rule would not
disrupt its proper application to lay defendants or deluge the appellate courts
with abusive repetition.
The State’s arguments obscure a major feature of Appellant’s case, the calamitous
effects of medication prescribed for Appellant.
             Prayer
Wherefore, Appellant prays that this Court grant his Motion for Reconsideration
en banc.
            CERTIFICATE OF SERVICE
The undersigned certifies hereby that on December 21, 2016 he served upon Gary
Bunyard, Assistant District Attorney for Burnet County. a true copy of
APPELLANT’S REPLY TO APPELLEE’S RESPONSE TO HIS MOTION FOR
RECONSIDERATION EN BANC in the within cause at his email address,
g.bunyard@co.llano.tx.us.
Respectfully submitted,
                  / s/ Barlow Smith
                      Attorney for Appellant, pro se
                      State Bar #18536020
                      605 Camino Cielo
                      Marble Falls, TX 78654-5926
                      telephone: (830)265-0892 facsimile: (866)221-2327
                      email: barlowsmithmd@yahoo.
Word count: 605
