                                  NO. 12-14-00069-CR

                            IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JASON WAYNE FRIZZELL,                           §       APPEAL FROM THE 349TH
APPELLANT

V.                                              §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §       HOUSTON COUNTY, TEXAS

                                  MEMORANDUM OPINION

       Appellant, Jason Wayne Frizzell, appeals his conviction for injury to a child. In two
issues, Appellant contends that he was denied due process in the conduct of the trial and that the
evidence is insufficient to support his conviction. We affirm.


                                          BACKGROUND
       On September 13, 2013, Appellant got into an argument with his sister–in-law, Tracy
Adams, in the front yard of Rhonda Musik’s house. In the course of the argument, Appellant
pushed Tracy Adams down. Jeremy Frizzell, Jr., age twelve, saw his mother on the ground
beside the road and rushed to her defense. Appellant hit Jeremy with a closed fist, knocking him
down, and left the scene.
       Deputy Sheriff Lorenzo Simpson arrived at the location in response to a 911 call. On
arrival, he found Jeremy crying. Jeremy told Deputy Simpson that his uncle had pushed his
mother and hit him. Jeremy had superficial abrasions and bruises to the left upper side of his
head. Jeremy had also been hit in the chest knocking his breath from him and causing him to fall
to the ground. His knees were scraped, and he suffered minor bruising and discoloration to his
back. At trial, Jeremy testified that the blow to his chest left a red mark, which hurt and
temporarily made it difficult to breathe. However, when an ambulance arrived, Jeremy and his
mother refused any medical treatment. Appellant was arrested two days later.
         At his arraignment, Appellant told the court that he wanted to represent himself. The trial
court thoroughly admonished Appellant regarding the dangers of self-representation. The trial
court tried repeatedly to impress on him the gravity of his decision to proceed pro se and the
likelihood that it was a mistake.
         Appellant filed pretrial motions for a change of venue, for the appointment of a different
judge, and for a speedy trial. At the hearing on the motions, Appellant said that he needed access
to a law library in order to prepare his defense. The trial court informed Appellant that a court
appointed lawyer would give him access to research materials. Appellant persisted in his refusal
to have a court appointed lawyer.1
         After the jury returned a guilty verdict, Appellant requested the appointment of counsel
for the punishment phase of the trial. Court appointed counsel consulted with Appellant on each
of the three working days between his appointment and the start of the punishment phase.
Immediately before the beginning of the trial on punishment, Appellant told the court that his
court appointed counsel was working against him. He requested more time to prepare or another
lawyer. He rejected further representation by his court appointed attorney, preferring to represent
himself if the court refused to appoint alternate counsel. The trial court denied his request for
delay or for the appointment of another lawyer. Appellant declined to testify and offered no
evidence. The jury assessed Appellant’s punishment at imprisonment for twenty years.2


                                ACCESS TO LEGAL RESEARCH MATERIALS
         In his first issue, Appellant complains that the trial court’s denial of access to legal
research materials while he represented himself denied him due process of law.
Applicable Law
         “The Sixth Amendment . . . grants to the accused personally the right to make his
defense.” Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562.


         1
           Appellant’s aversion to court appointed counsel is particularly difficult to understand. The record shows
that only the year before, Appellant had been represented by court appointed counsel at his trial on another charge
and had been acquitted.
         2
           Appellant had a prior felony conviction that was used to enhance the third degree felony injury to a child
to a second degree felony. See TEX. PENAL CODE ANN. §§ 22.04(f); 12.42(a) (West Supp. 2014).


                                                          2
Forcing a defendant to accept counsel against his will deprives the defendant of his constitutional
right to defend himself. Id., 422 U.S. at 835, 95 S. Ct. at 2541. A defendant electing to waive the
right to counsel and represent himself must do so competently and intelligently. Id. However, the
defendant’s technical and legal knowledge is not relevant in determining his competence to waive
his right to counsel. Id. The defendant’s waiver of his right to counsel must be knowing and
voluntary. Id. The record must show that he was made aware of the dangers and disadvantages
of self-representation and that he made that choice “with eyes open.” Id. Finally, the defendant’s
decision must be voluntary. Id.
       In United States v. Wilson, 666 F.2d 1241 (9th Cir. 1982), the defendant rejected court
appointed counsel, but argued that the Sixth Amendment right to self-representation implies a
right of access to legal facilities and materials necessary to prepare his defense. Id. at 1244. The
court in Wilson noted the Faretta court’s recognition that a defendant who rejects the assistance
of counsel necessarily relinquishes many of the benefits associated with representation by
counsel. Id. at 1245. Availability of court appointed counsel is a constitutionally adequate
means of access to research materials.       Id.       “A defendant may not effectively force the
Government to provide a particular means of access to the courts by denying the means offered.”
Id.
Discussion
       On each of the several occasions that Appellant complained he required access to a law
library to prepare his defense, the trial court informed him that court appointed counsel would
provide the access to legal research materials. Each time the trial court reiterated its offer to
appoint counsel to represent him, Appellant persisted in rejecting access through an attorney and
insisted on being provided a law library.
       The Wilson court noted that nowhere in Faretta did the Supreme 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.” Id. Appellant was not
denied due process. Appellant’s first issue is overruled.


                                  SUFFICIENCY OF THE EVIDENCE
       In his second issue, Appellant maintains the evidence is insufficient to support his
conviction.



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         In determining a challenge to the sufficiency of the evidence, the reviewing court must
consider all the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 560
(1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).
         In order to prove the offense charged in this case, the State was required to establish
beyond a reasonable doubt that Appellant intentionally, knowingly, or recklessly by omission
caused bodily injury to a child. See TEX. PENAL CODE ANN. § 22.04(a)(3) (West Supp. 2014).
“Bodily injury” means physical pain, illness, or any impairment of physical condition.                             Id.
§ 1.07(a)(8) (West Supp. 2014). The complainant, Jeremy, made a crude written statement
accompanied by an affidavit of nonprosecution from his mother, recanting the accusation against
his uncle. In his statement, he maintained that his difficulty in breathing after his uncle hit him in
the chest was due to an asthma attack. Although a reluctant witness, Jeremy testified at trial that
his uncle hit him in the chest knocking him to the ground. He testified that the blow caused pain,
left a red mark on his chest, and made it difficult for him to breathe for a period of time.
         Deputy Simpson testified that when he arrived on the scene, Jeremy was mad and crying.
Jeremy said his uncle had hit him in the chest and knocked him down in the road. Deputy
Simpson observed the red mark on Jeremy’s chest as well as other minor bruises and abrasions to
Jeremy’s face, neck, knees, and back apparently sustained in the same incident. Through Deputy
Simpson, the State introduced photographs of Jeremy’s injuries.
         The evidence is sufficient to support the conviction.                     Appellant’s second issue is
overruled.


                                                   DISPOSITION
         Having overruled Appellant’s two issues, we affirm the judgment of the trial court.


                                                                                BILL BASS
                                                                                 Justice

Opinion delivered August 5, 2015.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.



                                              (DO NOT PUBLISH)


                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                            AUGUST 5, 2015


                                         NO. 12-14-00069-CR


                                   JASON WAYNE FRIZZELL,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 13CR-183)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

                    Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
