                                                                                   ACCEPTED
                                                                              12-14-00335-CR
                                                                  TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         4/9/2015 11:47:30 AM
                                                                                 CATHY LUSK
                                                                                       CLERK

                     No. 12-14-00335-CR

                                                            RECEIVED IN
                                                      12th COURT OF APPEALS
          IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                    TYLER, TEXAS                      4/9/2015 11:47:30 AM
                                                           CATHY S. LUSK
                                                               Clerk

                       DONNIE CARR

                                Appellant,

                               v.
                                                               4/9/2015
                   THE STATE OF TEXAS

                                    Appellee



On Appeal from the Seventh District Court of Smith County, Texas
                 Trial Cause No. 007-0863-14




             ORAL ARGUMENT REQUESTED


                           Austin Reeve Jackson
                           Texas Bar No. 24046139
                           112 East Line, Suite 310
                           Tyler, TX 75702
                           Telephone: (903) 595-6070
                           Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
John Jarvis
326 S. Fannin
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




                                            ii
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE....................................................................................... 2
ISSUE PRESENTED ...................................................................................................... 2
STATEMENT OF FACTS ............................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................. 3
ARGUMENT .................................................................................................................. 4

    I.      BY DENYING HIM HIS CONSTITUTIONAL RIGHT TO
            ACCESS TO A LAW LIBRARY IN ORDER TO FURTHER HIS
            EXPRESSED DESIRE TO EXERCISE HIS RIGHT TO SELF-
            REPRESENTATION,                         THE                  TRIAL                     COURT
            CONSTRUCTIVELY DENIED MR. CARR HIS STATE AND
            FEDERALLY GUARANTEED RIGHT TO ACT AS HIS OWN
            COUNSEL ....................................................................................................... 4
     Standard of Review ................................................................................................... 4
     The Facts at Trial ...................................................................................................... 5
     Applying The Law to These Facts ............................................................................ 8

CONCLUSION AND PRAYER .................................................................................. 10
CERTIFICATE OF SERVICE ..................................................................................... 10
CERTIFICATE OF COMPLIANCE ............................................................................ 10




                                                             iii
                                  INDEX OF AUTHORITIES


UNITED STATES SUPREME COURT:

Bounds v. Smith,
 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) ...................................... 9

Faretta v. California,
 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) .................................... 4, 9

McKaskle v. Wiggins,
 465 U.S. 168, 177 S.Ct. 944, 79 L.Ed.2d 122 (1984) .................................... 4, 9


TEXAS COURT OF CRIMINAL APPEALS:

Blankenship v. State,
  673 S.W.2d 578 (Tex.Crim.App. 1984) ........................................................ 5

Dunn v. State,
 819 S.W.2d 510 (Tex.Crim.App. 1999) ........................................................ 9

Scarbrough v. State,
  777 S.W.2d 83 (Tex.Crim.App. 1989) .......................................................... 9


TEXAS COURTS OF APPEAL:

Alford v. State,
  367 S.W.3d 855 (Tex.App.—Houston [14th Dist.] 2012) ............................. 4

Birdwell v. State,
  10 S.W.3d 74 (Tex.App.—Houston [14th Dist.] 1999) ................................. 4, 9




                                                    iv
STATUTES AND OTHER CONSTITUTIONAL PROVISIONS:

TEX. CODE CRIM. PROC. art. 1.051(f) ................................................................ 5

TEX. CONST. art. 1 § 10 ..................................................................................... 5

U.S. CONST. AMEND. VI .................................................................................... 4, 9




                                                            v
                             No. 12-14-00335-CR


                    IN THE TWELFTH COURT OF APPEALS
                              TYLER, TEXAS


                               DONNIE CARR

                                         Appellant,

                                       v.

                           THE STATE OF TEXAS

                                            Appellee



       On Appeal from the Seventh District Court of Smith County, Texas
                        Trial Cause No. 007-0863-14




TO THE HONORABLE JUSTICES OF THE COURT:

      COMES NOW, Austin Reeve Jackson, attorney for Donnie Carr and files

this brief pursuant to the Texas Rules of Appellate Procedure, and would show the

Court as follows:
                         STATEMENT OF THE CASE

      Donnie Carr seeks to appeal his conviction and sentence for the offense of

delivery of a controlled substance rendered against him in the Seventh District

Court of Smith County. (I CR 89).      After being indicted for this offense in the

summer of last year, Mr. Carr entered a plea of “not guilty” and proceeded to trial

by jury. (I CR 1, 89). Ultimately, the jury found him to be guilty and then im-

posed punishment at confinement for life. (I CR 89). Sentence was pronounced

on 14 October 2014 and notice of appeal then timely filed. (I CR 94, 102).

                              ISSUE PRESENTED

      BY DENYING HIM HIS CONSTITUTIONAL RIGHT TO AC-
      CESS TO A LAW LIBRARY IN ORDER TO FURTHER HIS
      EXPRESSED DESIRE TO EXERCISE HIS RIGHT TO SELF-
      REPRESENTATION, THE TRIAL COURT CONSTRUCTIVE-
      LY DENIED MR. CARR HIS STATE AND FEDERALLY
      GUARANTEED RIGHT TO ACT AS HIS OWN COUNSEL.

                           STATEMENT OF FACTS

      On 7 May of last year an officer with the Tyler Police Department was pa-

trolling a local park when he came across Appellant, Mr. Donnie Carr, and another

individual sitting on a picnic table. (VII RR 173). On the table near Mr. Carr and

his companion were multiple syringes that appeared to have been recently used.

(VII RR 174). Believing at least some of the syringes contained methampheta-

mine, officers placed Mr. Carr under arrest for possession of a controlled sub-

stance. (VII RR 178).

                                        2
        A tow truck was called to take possession of Mr. Carr’s vehicle. (VII RR

182). When the driver of that truck arrived and entered Mr. Carr’s vehicle, he

found a case in that car containing methamphetamine. (VII RR 185). These drugs

formed the basis of the charge on which this appeal is based.

        After being charged with possession of a controlled substance, Mr. Carr

elected to enter a plea of “not guilty” and proceeded with a trial by jury in the Sev-

enth District Court of Smith County. (VIII RR 161). The jury found Mr. Carr to

be guilty and sentenced him to be confined for life. (VIII RR 182). Sentence was

pronounced on 8 October 2014 and notice of appeal then timely filed. (I CR 94,

102).

                       SUMMARY OF THE ARGUMENT

        A defendant has an absolute right to self-representation. As part of ensuring

that that right is meaningful, a defendant must be given adequate access to a law

library for the purpose of preparing his defense. In the instant case, Mr. Carr made

clear his desire to represent himself, but only if he could have law library access.

When the trial court acknowledged that desire but failed to ensure access to the

county law library, a condition on which Mr. Carr was relying to exercise his right

to self-representation, the court constructively denied him his right to self-

representation.




                                          3
                                   ARGUMENT

      Standard of Review

      A trial court’s denial of the right to self-representation is reviewed for an

abuse of discretion. Alfrod v. State, 367 S.W.3d 855, 861 (Tex.App.—Houston

[14th Dist.] 2012, pet. ref’d). The record, therefore, is reviewed “in the light most

favorable to the trial courts’ ruling, and [the Court] will imply any findings of fact

supported by the record and necessary to affirm the trial court’s ruling….” Id.

However, the denial of a proper request to proceed pro se is not subjection a harm

analysis. McKaskle v. Wiggins, 465 U.S. 168, 177 S.Ct. 944, 79 L.Ed.2d 122

(1984); Miles v. State, 204 S.W.3d 822, 826 (Tex.Crim.App. 2006); Birdwell v.

State, 10 S.W.3d 74, 78 (Tex.App.—Houston [14th Dist.] 1999, pet. ref’d).

      I.     BY DENYING HIM HIS CONSTITUTIONAL RIGHT TO
             ACCESS TO A LAW LIBRARY IN ORDER TO FUR-
             THER HIS EXPRESSED DESIRE TO EXERCISE HIS
             RIGHT TO SELF-REPRESENTATION, THE TRIAL
             COURT CONSTRUCTIVELY DENIED MR. CARR HIS
             STATE AND FEDERALLY GUARANTEED RIGHT TO
             ACT AS HIS OWN COUNSEL.
      Standard of Review

      The Sixth Amendment guarantees a defendant’s right to self-representation.

US. CONST. amend. VI; Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975). Additional protections for this right are also found in state




                                          4
statute and the Texas Constitution. TEX. CODE CRIM. PROC. art. 1.051(f); TEX.

CONST. art. 1 § 10.

      The Facts at Trial

      To exercise the right to self-representation a defendant must first timely and

unequivocally assert it.         Blankenship v. State, 673 S.W.2d 578, 583

(Tex.Crim.App. 1984). In this case, Mr. Carr first made an attempt to raise the is-

sue with the District Court on 2 September 2014, over a month before trial, but was

told “today is not the day” to address attorney-client conflict issues. (II RR 8-10).

Instead, the trial court set the case off a few weeks until 22 September. (II RR 10).

      On 22 September Mr. Carr raised several complaints regarding what he be-

lieved to be the ineffective assistance being rendered by trail counsel and noted his

desire to have the opportunity to review his discovery “so I can go over and come

up with my own defense.” (III RR 9). This was the first indication he gave the

court that he was looking “to defend myself,” a process being hindered by his lack

of access to the jail’s law library:

      I haven’t had time to prepare nothing for my own defense. … I’ve
      told [my lawyer] I’m not guilty of this. I’ve pleaded not guilty. And
      he’s done nothing but try to get me to plead out.

      I’ve turned down every offer that he’s made for me. I made that clear.
      Like I said, I just – I don't have any access to a law library. I put in
      for a law library over at Low Risk where I’m housed. … And they re-
      fused me law library then, too.

(III RR 8).

                                          5
      The case returned to court on 6 October. (VI RR 1). At that point, Mr. Carr

again indicated to the court that he and his trial counsel had had continued prob-

lems. (VI RR 10). Initially, Mr. Carr stated he wanted to fire his trial counsel and

seek time to retain a new attorney. (Id.). As part of his discussion with the court

on that issue, Mr. Carr returned once more to the denial of access to Smith Coun-

ty’s inmate law library:

      But we never brought up the fact that I was held in Smith County for
      two-and-a-half months without access to a law library, without an at-
      torney. I requested to go to the law library so I could file motions
      with the Court, so I could file letters with the District Attorney’s Of-
      fice; and I was not able to do that.

(VI RR 21-22). Repeatedly, he notes that the sheriff’s office “refused … to allow

anybody to go to the library.” (VI RR 23, 24).

      After talking with the trial court, Mr. Carr ultimately decided that he would

like “to file a request to defend myself pro se.” (VI RR 27-28). Mr. Carr recog-

nized though that “the only way that I will be effective in me defending myself is if

I’m allowed the rights that I think that I’m allowed – or supposed to be given to me

as an American tax-paying citizen, Your honor. I need access to those laws – to

that book. I need access.” (VI RR 32).

      In response, the trail court interrupted him and stated that, “under the Texas

case law, if you choose to represent yourself [that] doesn’t guarantee you any bet-




                                         6
ter access to any of the legal resources that I’ve just gone over with you. “ VI RR

32). The trail court continued:

      If the jail lets you go to the law library, great. If they don’t let you go
      to the law library, that’s not, I guess, a complainable infraction, as I
      understand the law to be.

      Often, the jails around our state make law libraries available for de-
      fendants. But, under the law, there’s no legal requirement – federally
      or statewise – that they, basically, give them a legal education or make
      law books available to them. It’s really a convenience that’s offered
      up. It’s not a guaranteed right, if that’s one of the reasons that you’re
      thinking you want to represent yourself is to force the jail to give you
      something maybe they haven’t given to you at this point. Because
      that’s not going to happen.

(VI RR 33) (emphasis added).

      Mr. Carr, who had recently read the Constitution (VI RR 31), recognized

something inherently wrong with the judge’s comments and asked again if his only

option was to proceed pro se in ignorance:

      So, in other words, with me being an American citizen, a taxpayer of
      this county, and I’m saying that I’m not guilty and I want to go to jury
      trial and I want to represent myself, then Smith County and this Court
      has no rights at all to give me any kind of access to any kind of law li-
      brary or any legal books or anything that I can use to file my motions
      with or anything like that?

(VI RR 33). “I don't control that,” the court responded, “That’s what the law

says.” (VI RR 34) (emphasis added).




                                          7
      As a result, Mr. Carr decided that, “if I’m not going to have any rights to a

law library or anything like that,” he could not proceed pro se. (VI RR 60). “I

won't sign [the waiver of right to counsel” under those conditions.” (VI RR 70).

      The next day, prior to jury selection, Mr. Carr changed his mind an initially

elected to act as his own attorney. (VII RR 16). “I’ve asked for help with legal

books or anything like that that I might go over or read, you know; and it was all

refused,” he told the Court. (VII RR 17). “So I guess I’ll just have to do the best

that I can.” (VII RR 17).

      He did not stick with this decision, however, and prior to jury selection

asked that his original counsel be reappointed. (VII RR 41).

      Applying The Law to These Facts

      A reading of Mr. Carr’s comments to the trial court reveal that he absolutely

desired to represent himself, but only if he had access to the necessary statutes and

rules of evidence and procedure. (VI RR 27-28, 60, 70). The trial court though,

not only took no steps to ensure that such access was permitted, but went so far as

to say that Mr. Carr had no legal right to such access with the result being Mr.

Carr’s forced and involuntary waiver of his right to proceed pro se. (VI RR 33, 60,

70; VII RR 17).

      The law is clear that a defendant has a constitutional right to access to a law

library in order to prepare his defense. This right was first recognized by the Su-



                                         8
preme Court in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72

(1977). “In Bounds, the Supreme Court held that the fundamental constitutional

right of access to the courts requires prison authorities to assist inmates in the

preparation and filing of meaningful legal papers by providing prisoners with ade-

quate law libraries or adequate assistance from persons trained in the law.” Dunn

v. State, 819 S.W.2d 510, 525 (Tex.Crim.App. 1999). In the instant case, however,

the trial court not only denied Mr. Carr this right, but did so as a means to denying

him his right to self-representation under both federal and state law. See US.

CONST. amend. VI; Faretta, 422 U.S. at 821; TEX. CODE CRIM. PROC. art. 1.051(f);

TEX. CONST. art. 1 § 10.

      If he desires to do so a defendant must be allowed to conduct his own de-

fense. Faretta, 422 U.S. at 834, 95 S.Ct. 2525; Scarbrough v. State, 777 S.W.2d

83, 92 (Tex.Crim.App. 1989). Further, the denial of the right to represent oneself

is not subject to a harm analysis. Birdwell, 10 S.W.3d at 79 (citing McKaskle, 465

U.S. at 177). Because the record before the Court shows that Mr. Carr desired to

represent himself but only provided he could also exercise his right to access the

jail’s law library, and that the trial court not only denied that request but told Mr.

Carr he had no right to access the law library thereby forcing Mr. Carr to rely on

appointed counsel, the Court should hold that Mr. Carr’s right to self-




                                          9
representation under both federal and state law was improperly denied and remand

the case for a new trial.

                            CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays, because the

trail court denied Mr. Carr his right to access the county law library as a means by

which to force him to waive his expressed desire to exercise his right to self-

representation, that the Court reverse the judgment in this case and remand the

matter for a new trial.

                                               Respectfully submitted,

                                               /s/ Austin Reeve Jackson
                                               Texas Bar No. 24046139
                                               112 East Line, Suite 310
                                               Tyler, TX 75702
                                               Telephone: (903) 595-6070
                                               Facsimile: (866) 387-0152

                            CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this brief was delivered to counsel for

the State by efile on this the 8th day of April 2015.

                                               /s/ Austin Reeve Jackson

                          CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule 9.4 and

consists of 2,266 words.

                                               /s/ Austin Reeve Jackson

                                          10
