                                                                               ACCEPTED
                                                                          12-14-00069-CR
                                                              TWELFTH COURT OF APPEALS
                                                                           TYLER, TEXAS
                                                                    2/27/2015 11:04:26 AM
                                                                             CATHY LUSK
                                                                                   CLERK



                No. 12-14-00069-CR
                                                        FILED IN
         IN THE TYLER COURT OF APPEALS    12th COURT OF APPEALS
       TWELFTH JUDICIAL DISTRICT OF TEXAS      TYLER, TEXAS
                                                 2/27/2015 11:04:26 AM
                                                      CATHY S. LUSK
                                                          Clerk



              JASON WAYNE FRIZZELL
                    Appellant,

                         v.

                THE STATE OF TEXAS

                      Appellee




                  On appeal From the
  TH
349    Judicial District Court, Houston County, Texas
              Trial Cause No. 13CR-183




            BRIEF FOR THE APPELLEE




                          Donna G. Kaspar
                          District Attorney for Houston County
                          401 E. Houston Ave., Basement Floor
                          Crockett, Texas 75835
                          (936) 544-3255 x 245
                          (936) 544-2790 (FAX)
                          SBOT# 00785201


                          1
                IDENTITY OF PARTIES AND COUNSEL


APPELLANT:

JASON WAYNE FRIZZELL

ATTORNEY FOR APPELLANT

Stephen Evans
1000 N. Church St.
Palestine, Texas 75802

ATTORNEY FOR APPELLEE

Donna Gordon Kaspar, District Attorney
401 E. Houston Ave., Basement Floor
Crockett, Texas 75835




                                 2
                         TABLE OF CONTENTS
                                             Page

Table of Contents                             3

Index of Authorities                          4

Issues Presented                              6

Statement of Facts                            6

Issue Number One Restated                     7

Summary of the Argument                       7

Argument                                      7

Issue Number Two Restated                     10

Summary of the Argument                       11

Argument                                      11

Prayer                                        12

Certificate of Service                        13

Certificate of Word Compliance                13




                                 3
                      INDEX OF AUTHORITIES

                                                                  Page

                                 Cases

Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App.
1984)                                                              8

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)           11, 12

Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed.
2d 562 (1975)                                                     7,8,9

Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 2687,
125 L. Ed. 2d 321 (1993)                                           8

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979)                                            11

United States v. Wilson, 666 F.2d 1241 (9th Cir. Nev. 1982)        10




                                Statutes

Tex. Code Crim. Proc. art. 1.051                                   8




                                   4
                             No. 12-14-00069-CR

                     IN THE TYLER COURT OF APPEALS
                   TWELFTH JUDICIAL DISTRICT OF TEXAS




                          JASON WAYNE FRIZZELL,

                                  Appellant

                                      vs.

                            THE STATE OF TEXAS,

                                   Appellee




                              On appeal From the
             349th Judicial District Court, Houston County, Texas
                           Trial Cause No. 13CR-183




                         BRIEF FOR THE APPELLEE




TO THE HONORABLE TYLER COURT OF APPEALS:

      NOW COMES, Donna Gordon Kaspar, District Attorney for Houston

County, and respectfully submits her Brief for the Appellee, requesting that

this Court affirm the judgment of the Trial Court.




                                       5
                          ISSUES PRESENTED

    1.   Appellant knowingly and intelligently relinquished his right to

         an attorney and, in doing so, relinquished other benefits such

         as legal research materials. Due process was not thwarted in

         this case by the trial court agreeing to allow Appellant to

         represent himself after giving numerous admonishments

         under Faretta.

    2.   The   evidence   presented     by   the   State    provided   legally

         sufficient evidence to support the jury’s verdict of guilt.


                          STATEMENT OF FACTS

     Appellant was tried and convicted of Injury to a Child. Appellant

had a previous felony conviction that was used to enhance the 3rd

Degree Felony Injury to a Child to a 2nd Degree Felony. The appellant

represented himself at trial.    Appellant began filing pro se motions

before the indictment had been handed down. (C.R. pp. 9-19, 22-24).

After Appellant was indicted, the trial court conducted a hearing

wherein she thoroughly admonished Appellant.               (Sup.R.R. Vol. 2).

Appellant continued to insist that he be allowed to represent himself

and he insisted that he should be given access to a law library without

having to accept an appointed attorney.              At trial, the victim,

Appellant’s nephew, testified that Appellant hit him in the chest which

knocked him to the ground.      He also testified that it hurt, left a red
                                    6
mark on his chest and caused difficulty in breathing for a period of

time. (R.R., Vol. 3, pp. 142 -146, 152-153, 163-164, 183,187, 195-

197, 199, 206). Appellant left the scene after he struck his nephew

and was later apprehended.


                           ISSUE NUMBER ONE

      Appellant knowingly and intelligently relinquished his right to an

attorney and, in doing so, relinquished other benefits such as legal

research materials.    The trial court, under Faretta, was required to

allow Appellant to represent himself after giving the appropriate

admonishments.

                      SUMMARY OF THE ARGUMENT

      The   availability   of   legal   assistance   is   a   constitutionally

permissible means of access to research.        When adequate access is

provided, the accused may not reject the method provided and insist

on an avenue of his or her choosing.

                                ARGUMENT

      The Sixth and Fourteenth Amendments guarantee that a person

brought to trial in any state or federal court must be afforded the right

to the assistance of counsel before he can be validly convicted and

punished for any felony. Faretta v. California, 422 U.S. 806, 95 S. Ct.

2525, 45 L. Ed. 2d 562 (1975). Those amendments also guarantee

                                        7
that any such defendant may dispense with counsel and make his own

defense. Faretta, 95 S. Ct. at 2533. Such a decision, to be

constitutionally   effective,    must     be     made   (1)     competently,   (2)

knowingly and intelligently, and (3) voluntarily. Godinez v. Moran, 509

U.S. 389, 113 S. Ct. 2680, 2687, 125 L. Ed. 2d 321 (1993); Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see

also Tex. Code Crim. Proc. art. 1.051. The decision to waive counsel

and proceed pro se is made "knowingly and intelligently" if it is made

with a full understanding of the right to counsel, which is being

abandoned, as well as the dangers and disadvantages of self-

representation. Faretta v. California, 95 S. Ct. at 2541. The decision is

made "voluntarily" if it is uncoerced. Godinez v. Moran, 113 S. Ct. at

2687.

        The   record   must     reflect   that    the   trial   court   thoroughly

admonished the defendant.          Faretta v. California, 95 S.Ct. at 2541;

Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984).

        The Clerk’s Record shows that Appellant expresses his wish to

represent himself before the indictment had been handed down. (C.R.

pp. 9-19, 22-24). After Appellant was indicted, the trial court

conducted a hearing wherein she thoroughly admonished Appellant.

(Sup.R.R., Vol. 2, pp. 4-11). The record reflects that, before the trial

court granted appellant's request to proceed pro se, it first elicited


                                          8
from him the fact that he wanted to represent himself. (Sup.R.R., Vol.

2, p. 4). It then explained to him that it was not smart to represent

himself. The court also explained to him that there were technical rules

of evidence and procedure that applied at trial, that he would not be

granted any special consideration with respect to those rules, and that

as a result he might be disadvantaged both at trial and in any appeal

that might follow. (Sup.R.R., Vol. 2, pp. 5-11). The trial court told the

appellant that she could appoint him an attorney and Appellant told

the judge that he did not want one. (Sup.R.R., Vol. 4, p. 20).   Finally,

the record reflects that the trial court tried repeatedly to impress upon

appellant the extreme gravity of his request to proceed pro se and the

likelihood that it was a serious mistake. (Sup.R.R., Vol. 2, pp. 4-11;

Vol. 3, pp. 4-24; Vol. 4, pp. 9-26).     Based on the record, then, it

cannot be said that appellant's decision to proceed pro se was

anything less than knowing and intelligent. Nor is there anything in the

record indicating that appellant's decision was anything less than

voluntary.   The trial court, therefore, did not thwart due process by

allowing Appellant to proceed without an attorney appointed to

represent him.

      By choosing to represent himself, Appellant gave up the right to

research materials. The Supreme Court, in Faretta, specifically

recognized that a criminal defendant who exercises his right to reject


                                    9
counsel necessarily relinquishes many of the benefits associated with

representation by counsel.     Nowhere did the Faretta 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. The Ninth Circuit U.S. Court of

Appeals declined to interpret the right to self-representation under the

Sixth Amendment to include a right to conduct one's own research.

United States v. Wilson, 666 F.2d 1241 (9th Cir. Nev. 1982).         That

Court said that the availability of legal assistance is a constitutionally

permissible means of access to research and that when adequate

access is provided, the accused may not reject the method provided

and insist on an avenue of his or her choosing. Id. at 1353. That is

exactly what Appellant has done in this case. The trial court explained

more than once that Appellant’s access to research materials came

through an appointed attorney. (Sup.R.R., Vol. 3, p. 6; Vol. 4, pp.

9,13,19,20,22). After hearing the explanation, Appellant repeatedly

rejected access through an attorney and insisted on being provided a

law library. There has been no violation of due process and the Court

should deny Appellant’s Issue Number One.

                          ISSUE NUMBER TWO

      The evidence presented by the State provided legally sufficient

evidence to support the jury’s verdict of guilt.


                                    10
                     SUMMARY OF THE ARGUMENT

      The appropriate standard for review of factual sufficiency of the

elements of the offense is now the same standard used for legal

sufficiency found in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893 (Tex. Crim.

App. 2010).



                              ARGUMENT

      The Court of Criminal Appeals overruled Clewis in Brooks v.

State, 323 S.W.3d 893 (Tex. Crim. App. 2010).           The appropriate

standard for review of factual sufficiency of the elements of the offense

is now the same standard used for legal sufficiency found in Jackson v.

Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).             That

standard requires the Court to view the evidence “in the light most

favorable to the verdict” and thus defer to the jury’s credibility and

weight determinations because the jury is the sole judge of the

witnesses’ credibility and the weight to be given their testimony.

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). The Court in

Brooks found that the only way to retain a factual-sufficiency standard,

which would be meaningfully distinct from a Jackson v. Virginia legal-

sufficiency standard, would be to allow reviewing courts to sit as


                                   11
“thirteenth jurors.”   The Court noted that their factual-sufficiency

decisions have consistently declined to do that. Brooks v. State, 323

S.W.3d 893, 906 (Tex. Crim. App. 2010).

      Viewing the evidence in the light most favorable to the verdict

this Court must find that there is factually sufficient evidence to

sustain the jury’s verdict of guilt.    The jury had evidence of each

element of the offense of Injury to a Child. The testimony of Jeremy

Frizzell, Jr. proved that Appellant intentionally or knowingly caused

bodily injury to him by hitting him and that he was younger than 14

years of age at the time. Jeremy testified that Appellant hit him in the

chest which knocked him to the ground. He also testified that it hurt,

left a red mark on his chest and caused difficulty in breathing for a

period of time.    (R.R., Vol. 3, pp. 142 -146, 152-153, 163-164,

183,187, 195-197, 199, 206).

                                PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State respectfully

prays that the Court affirm the judgment of the Trial Court in this

cause.

                                    Respectfully Submitted,



                                       Donna G. Kaspar
                                    ____________________________
                                    Donna G. Kaspar
                                    District Attorney for Houston County
                                    401 E. Houston Ave.

                                   12
                                   Crockett, Texas 75835
                                   (936) 544-3255 x 245
                                   (936) 544-2790 (FAX)
                                   SBOT# 00785201

                      CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and
foregoing Appellee’s Brief was served on counsel of record on this the
_____
  27th day of __________,
                February     2015.

                                       Donna G. Kaspar
                                   _____________________________
                                   Donna G. Kaspar

                CERTIFICATE OF WORD COMPLIANCE

      District Attorney, Donna Gordon Kaspar, on this the 27th day of
February, 2015, hereby certifies this document has 1918 word count,
including captions and table of contents.
                                   Donna G. Kaspar
                                   ___________________________
                                   Donna G. Kaspar




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