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
13
Jason Wayne Frizzell v. State
Combined Opinion