                                                                            ACCEPTED
                                                                        12-14-00335-CR
                                                           TWELFTH COURT OF APPEALS
                                                                         TYLER, TEXAS
                                                                  5/11/2015 10:31:08 PM
                                                                          CATHY LUSK
                                                                                 CLERK

             NUMBER 12-14-00335-CR
                                                       FILED IN
                                                12th COURT OF APPEALS
IN THE TWELFTH DISTRICT COURT OF                APPEALS
                                                     TYLER, TEXAS
              TYLER, TEXAS                      5/11/2015 10:31:08 PM
                                                     CATHY S. LUSK
                                                         Clerk

               DONNIE DALE CARR,
                       Appellant

                            v.

              THE STATE OF TEXAS,
                        Appellee

    From the 7th District Court of Smith County, Texas
           Trial Cause Number 007-0863-14


                   STATE’S BRIEF


        ORAL ARGUMENT REQUESTED

                 D. MATT BINGHAM
                Criminal District Attorney
                 Smith County, Texas

                   AARON REDIKER
                Assistant District Attorney
          State Bar of Texas Number 24046692
           Smith County Courthouse, 4th Floor
                   Tyler, Texas 75702
                 Phone: (903) 590-1720
                  Fax: (903) 590-1719
           Email: arediker@smith-county.com
                                              TABLE OF CONTENTS

Index of Authorities ....................................................................................................2


Statement of Facts ......................................................................................................3


Summary of Argument ...............................................................................................4


I.ISSUE: Appellant’s constitutional right to self-representation did not guarantee him
access to a jail law library after counsel had been appointed to represent him, counsel’s
assistance was subsequently rejected, and the trial court thereafter ordered appellant’s
attorney to remain as standby counsel. ........................................................................4


Standard of Review .....................................................................................................4


Argument ....................................................................................................................5


Certificate of Compliance ........................................................................................11


Certificate of Service ................................................................................................11




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                                             INDEX OF AUTHORITIES



Federal Cases

Bounds v. Smith, 430 U.S. 817 (1977) ........................................................................6
Degrate v. Godwin, 84 F.3d 768 (5th Cir. 1996) ........................................................7
Faretta v. California, 422 U.S. 806 (1975) .............................................................4, 6
Lewis v. Casey, 518 U.S. 343 (1996) ................................................................. 6, 8, 9


Texas Cases

Blankenship v. State, 673 S.W.2d 578 (Tex. Crim. App. 1984) ..................................4
Funderburg v. State, 717 S.W.2d 637 (Tex. Crim. App. 1986) ..................................6
Johnson v. State, 257 S.W.3d 778 (Tex. App.—Texarkana 2008, pet. ref’d) .... 7, 8, 9
Musgrove v. State, 425 S.W.3d 601 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
  ....................................................................................................................... 7, 8, 9
Scarbrough v. State, 777 S.W.2d 83 (Tex. Crim. App. 1989) .....................................6
Williams v. State, 252 S.W.3d 353 (Tex. Crim. App. 2008) .......................................5




                                                               2
                           NUMBER 12-14-00335-CR


            IN THE TWELFTH DISTRICT COURT OF APPEALS
                          TYLER, TEXAS


                              DONNIE DALE CARR,
                                  Appellant

                                          v.

                             THE STATE OF TEXAS,
                                   Appellee

               From the 7th District Court of Smith County, Texas
                      Trial Cause Number 007-0863-14


                                 STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant Criminal

District Attorney, respectfully requesting that this Court overrule appellant’s sole

alleged issue and affirm the judgment of the trial court in the above-captioned cause.


                                STATEMENT OF FACTS

   Appellant has stated the essential nature of the proceedings and the evidence

presented at trial (Appellant's Br. 2-3). In the interest of judicial economy, any other




                                           3
facts not mentioned therein that may be relevant to the disposition of appellant's issue

will be discussed in the State's arguments in response.


                               SUMMARY OF ARGUMENT

   Where, as here, the trial court appointed counsel to represent appellant, and

because he did not have an abstract, freestanding constitutional right of access to the

jail’s law library, he has failed to show that the trial court denied him his Sixth

Amendment right to self-representation. Appellant was entitled to the appointment of

counsel or access to the law library, but not both, and the trial court properly

admonished appellant that the right to self-representation did not alone provide special

or priority access to the law library.


I. ISSUE: Appellant’s constitutional right to self-representation did not
guarantee him access to a jail law library after counsel had been appointed to
represent him, counsel’s assistance was subsequently rejected, and the trial
court thereafter ordered appellant’s attorney to remain as standby counsel.

                                 STANDARD OF REVIEW

   “The U.S. Supreme Court in Faretta v. California, 422 U.S. 806, 819, 95 S. Ct.

2525, 45 L. Ed. 2d 562 (1975) found in the Sixth Amendment an independent

constitutional right of an accused to conduct his own defense and held that the right to

self-representation does not arise from one's power to waive assistance of counsel.”

Blankenship v. State, 673 S.W.2d 578, 582 (Tex. Crim. App. 1984). “In order to

                                           4
competently and intelligently choose self-representation, the defendant should be made

aware of the dangers and disadvantages of self-representation so that the record will

establish that ‘he knows what he is doing and his choice is made with eyes open.’”

Blankenship, 673 S.W.2d at 583 (quoting Faretta, 422 U.S. at 835). While the trial

court is not required to follow a formulaic script of questions, “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.’” Blankenship, 673 S.W.2d at 583 (quoting

Faretta, 422 U.S. at 836). “[W]hen the record does not affirmatively show that the

defendant was sufficiently admonished as required by Faretta, it is reversible error, not

subject to a harm analysis.” Williams v. State, 252 S.W.3d 353, 357 (Tex. Crim. App.

2008).


                                      ARGUMENT

   In his single alleged issue, appellant argues that the trial court constructively denied

his right to self-representation by failing to ensure that appellant had access to the law

library (Appellant’s Br. 5-10). Appellant claims that he unequivocally asserted his

right to proceed to trial pro se, “but only if he could have law library access.”

(Appellant’s Br. 3). “However, the right to self-representation does not attach until it

has been clearly and unequivocably asserted.” Funderburg v. State, 717 S.W.2d 637,
                                            5
642 (Tex. Crim. App. 1986) (citing Faretta, 422 U.S. at 835). If, as appellant states

in his brief (Appellant’s Br. 3, 8, 9), his access to the law library was indeed, “a

condition on which Mr. Carr was relying to exercise his right to self-representation”

(Appellant’s Br. 3), then his invocation of that right was “conditional, and hence,

equivocal,” and he was not denied his Sixth Amendment right to self-representation.

Scarbrough v. State, 777 S.W.2d 83, 93-94 (Tex. Crim. App. 1989).

   Even if appellant’s invocation of his right to self-representation had been clear and

unequivocal, he has failed to show that the trial court’s admonishments regarding the

dangers and disadvantages of doing so were improper (Appellant’s Br. 5-10). As he

notes in his brief (Id. at 9), “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 adequate law libraries or adequate assistance

from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977),

overruled on other grounds, Lewis v. Casey, 518 U.S. 343, 354 (1996)). Nevertheless,

“Bounds did not create an abstract, freestanding right to a law library or legal

assistance,” nor does it “guarantee inmates the wherewithal to transform themselves

into litigating engines.” Lewis, 518 U.S. at 351, 355. “[T]he concomitant rights to

self-representation and access to the courts are not coupled with an unfettered right of

access to legal resources.” Musgrove v. State, 425 S.W.3d 601, 609 (Tex. App.—

                                             6
Houston [14th Dist.] 2014, pet. ref’d). Providing access to a jail law library is merely

one constitutionally acceptable method to assure meaningful access to the courts, but

not the only one. Lewis, 518 U.S. at 351 (citing Bounds, 430 U.S. at 830). By

appointing counsel to represent the defendant, the trial court provides meaningful

access to the courts to a constitutionally acceptable degree, and the defendant is not

thereafter entitled to access a jail law library even if counsel’s assistance is

subsequently rejected. See Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996)

(finding no violation of federal rights because, “having rejected the assistance of

court-appointed counsel, Degrate had no constitutional right to access a law library in

preparing the pro se defense of his criminal trial”); Johnson v. State, 257 S.W.3d 778,

780-781 (Tex. App.—Texarkana 2008, pet. ref’d) (same); Musgrove, 425 S.W.3d at

609 (“Once appellant rejected the offer of appointed counsel and elected to represent

himself, the State was not required to provide appellant access to legal materials to

prepare his defense . . . [r]egardless, the trial court instructed appointed counsel to

assist as standby counsel.”).

   Here, the trial court appointed counsel to represent appellant on 30 July 2014

(Clerk’s R. at 6). On 6 October 2014, the day before trial, appellant expressed his

desire to represent himself, and the trial court began a series of admonishments



                                           7
informing him of the dangers and disadvantages of self-representation and warned

appellant that he would not receive any special access to the jail’s law library:

      THE COURT: Let me interrupt you there. Because you understand that, under
      the Texas case law, if you choose to represent yourself, you get to represent
      yourself. That doesn't guarantee you any better access to any of the legal
      resources that I've just gone over with you. That's still up to you.

      That's one of the many, many, many advantages of having a lawyer represent
      you. You're not entitled to any extra relief. 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 Defendants.
      But, under the law, there's no legal requirement – federally or statewide – 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 Rep.’s R. at 32-33). As the trial court had already appointed counsel to represent

the appellant, the preceding admonishment was a proper and accurate statement of the

law. See Lewis, 518 U.S. at 351, 355; Johnson, 257 S.W.3d at 780-781; Musgrove,

425 S.W.3d at 609. Further, the trial court made it clear to appellant that his appointed

attorney would remain as standby counsel even if appellant ultimately chose to

represent himself (VI Rep.’s R. at 39; VII Rep.’s R. at 24; Clerk’s R. at 65). While

appellant first declined to sign a written waiver of counsel after listening to the

admonishments (VI Rep.’s R. at 69-70; Clerk’s R. at 57), he changed his mind on the

                                            8
morning of trial, signed the waiver, and then changed his mind again, waiving his right

to self-representation just before voir dire began (VII Rep.’s R. at 16, 23-24, 40-42;

Clerk’s R. at 66). In Johnson, under very similar facts that ended in a negotiated guilty

plea rather than a jury trial, the Sixth Court held that an appellant is entitled to either

the appointment of counsel or access to a law library—not both:

      In the instant case, Johnson was provided with appointed counsel. According
      to the testimony, his appointed counsel had met with him on many occasions
      and had advised him. Johnson, however, was not hearing what he wanted to
      hear from the appointed counsel. Even during the period before he indicated to
      the trial court that he wanted to represent himself, Johnson was filing numerous
      (often inappropriate) motions and lists of many, many witnesses which he
      indicated that he wanted to have subpoenaed to the trial (including Oprah
      Winfrey). Johnson then decided that he could do a better job representing
      himself. Even after he elected to proceed pro se, the trial court instructed
      appointed counsel to attend the trial so he could step in and assist Johnson, if
      and when Johnson then decided this was the appropriate thing to do. The State
      was not then obligated to also provide Johnson with access to a law library.
      Johnson was entitled either to have counsel appointed for him or to be allowed
      access to a law library; if he rejects the offer of appointed counsel, he is not
      then entitled to access to a law library.

Johnson, 257 S.W.3d at 780-781. As the trial court provided appellant with counsel,

who remained as standby counsel when appellant elected to proceed to trial pro se,

appellant’s right to self-representation did not entitle him to access to the jail’s law

library, and the trial court properly advised him of that fact during its Faretta

admonishments. See Lewis, 518 U.S. at 351, 355; Johnson, 257 S.W.3d at 780-781;

Musgrove, 425 S.W.3d at 609. Appellant has failed to show from any other evidence

                                            9
contained in the record that the trial court denied his right to self-representation, and

therefore, his sole alleged issue is without merit and should be overruled.

                                        PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the

Court overrule appellant’s sole alleged issue and affirm the judgment of the 7th District

Court of Smith County, Texas, in the above-captioned cause.

                                                Respectfully submitted,

                                                D. MATT BINGHAM
                                                Criminal District Attorney
                                                Smith County, Texas

                                                /s/ Aaron Rediker
                                                Aaron Rediker
                                                Assistant District Attorney
                                                SBOT #: 24046692
                                                100 North Broadway, 4th Floor
                                                Tyler, Texas 75702
                                                Office: (903) 590-1720
                                                Fax: (903) 590-1719 (fax)
                                                arediker@smith-county.com




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                           CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney

certifies that the word count for this document is 1,763 words as calculated by

Microsoft Word 2013.


                                               /s/ Aaron Rediker
                                               Aaron Rediker


                              CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 11th day of May 2015, the State’s

Brief in the above-numbered cause has been electronically filed, and a legible copy of

the State's Brief has been sent by email to A. Reeve Jackson, attorney for appellant, at

JLawAppeals@gmail.com.


                                               /s/ Aaron Rediker
                                               Aaron Rediker




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