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
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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
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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
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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
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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
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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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