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NAL NO. 12-14-00069-CR

IN THE

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

JASON WAYNE FRIZZELL V.

THE STATE OF TEXAS

REC From Appeal No. 12-14-00069-CR urciitWi

Trial Cause No. 13-CR-183 §jrp jQ 2015 Houston County

PETITION FOR DISCRETIONARY REVIEW

n.m FILED IN X3URT OF CRIMINAL APPEALS SEP 16 2015 Abel Acosta, Clerk TABLE OF CONTENTS

Index of Authorities 2 Statement Regarding Oral Argument 3 Statement of The Case 4 Statement of Procedural History 5 Ground For Review One 7 Ground For Review Two 7 Argument 8 Prayer For Relief . *. 11 Certificate of Service 13 Certificate of Compliance 12 Appendix A 14 INDEX OF AUTHORITIES

United States Court Cases Avery V. Alabama, 308 U.S. 444-446 § Almendarez-Torres V. United States, 523 U.S. 224 10 Brown V. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) 9 Faretta V. California, 422 U.S. 806 (1975) 8 Indiana V. Edwards, 554 U.S. 164(2008) 8 Jones V. United States, 119 S.Ct. 1215 (1999) .10 Mickens V. Taylor, 535 U.S. 162, 166 10 United States V. Cronic, 466 U.S. 648, 653 9 United States V. Fisher, 25 F.Cas 1086 (cc Ohio 184) 10 United States V. Taylor, 933 F.2d 307 (5th Cir. 1991) 8 Wheat V. United States, 486 U.S. 153 (1988) 8

Texas Court Cases Chadwick V. State, 309 S.W. 3d 558 (Tex.Crim.App. 2010) 9 Ex Parte Scott Louis Panetti, WR-37-145 (Tex.Crim.App. 2010) 9 Garcia V. State, 367 S.W. 3d 683 (Tex.Crim.App. 2012) 11 Lane V. State, 763 S.W. 2d 785 (Tex.Crim.App. 1989) 11

Constitutions, Criminal Law Criminal Law Q~t 641.1 8 Criminal Law Gz? 641.13(1) 8 Prisons C=> 4(13) 8 U.S. Const..Amend 6 8 STATEMENT REGARDING ORAL ARGUMENT

Oral argument would be helpful because this case presents novel issues this court has not previously addressed.

STATEMENT OF CASE

This is a Petition for Discretionary Review upon two submitted issues, of a jury verdict of Guilty and subsequent issuance of a sentence for incarceration to the term of Twenty (20) years, TDCJ-ID. PROCEDURAL HISTORY The subject offense was injury to a child, a Third degree felony as charged by indictment. The indictment did not include any prior convictions for enhance ment purposes. At punishment the third degree felony was enhanced to a second de gree felony due to a prior felony conviction which was obtained pursuant to a plea agreement on April 19, 2001. The jury reviewed guilt and innocence as well as ren dered punishment. The alleged events occured in Houston County, on or about the 14th day of September, 2013. The purported child victim was a relative, who all eged to have been struck in the upper left chest during the course of a heated in teraction between his mother and I. No injury, pain or resulting incapacity was ev ident as a product of the disagreement. I, the petitioner, maintain that the fracas did not entail any injury to the child. After leaving the area, I was later arrest ed at my mothers residence. During the course of the pendency of the matter, I re peatedly requested reasonable access to a law library and law reference materials.

Other than basic statutory manuals, I was not provided research or caselaw mater ials .

At the day of trial, I was subjected to a Hobson's Choice of waiving my filed speedy trial motion, or going forth to trial without adequate preparation. Trial was conducted without me being able to present a defense to the matter which resul- ed in a jury verdict of guilty. I requested counsel for the punishment phase of tr ial, yet due to discard and conflict with appointed counsel, such counsel withdrew from the matter and punishment phase of trial was conducted. I did not tender any evidence, citing 5th Amendment privilege and repeatedly requesting more time for preparation or alternate counsel for assistance. After presentation of a pen pack et, exhibiting a prior conviction and argument of the State, without rejoinder by me, the jury rendered a sentence of (20) years, TDCJ-ID. I submit that I did not receive appropriate due process in the conduct of the trial and that such evidence presented was insufficient to support the conviction. I filed a Motion for New Tr ial on March 5th, 2014 citing numerous points of error in the conduct of the trial.

Such points go to the heart of the due process violations alleged in the conduct of the trial.

Appeal Brief was filed on December 31st, 2014 in the 12th Court of Appeals of Texas. On August 5th Conviction and Sentencing was affirmed 2015. Opinion to Affirm by the 12th Court of Appeals of Texas was based in part due to the inaccuracy of state record in cause number 11CR128, in which I was found to be NOT GUILTY as a result of waiving court appointed counsel during trial and representing oneself for the last two days of trial. Two attorneys were appointed to the case and after co nflict with both, I elected to act pro se and was acquitted on 3-27-2012. Motion for Rehearing was not filed with the Twelfth Court of Appeals.

ISSUES PRESENTED

GROUND FOR REVIEW ONE: THE COURT OF APPEALS ERRED IN HOLDING THAT THE APPELLANT RECIEVED ADEQUATE DUE PR OCESS IN THE CONDUCT OF THE TRIAL.

GROUND FOR REVIEW TvK): THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVIDENCE WAS SUFFICIENT.

POINTS, ARGUMENTS AND AUTHORITIES I.

THE APPELLANT WAS DENIED ADEQUATE DUE PROCESS IN THE CONDUCT OF THE TRIAL.

As established by the United States Supreme Court, in it's holding in the case of Faretta V. California, 422 U.S. 806 (1975), a criminal defendant does indeed have a U.S. Constitutional right to pursue a defense on his or her own, without the trial court imposing counsel on them. However, the case does not allow that status to be established when defendant is impaired and "unable" to assert an appropriate defense by the absence of legal research materials, an investigator and other app ropriate resources as was requested repeatedly in this case. When counsel is either totally absent or is prevented from assisting the accused during a critical stage of the proceedings, then the trial is unfair and reversal of a conviction is mand ated, regardless of whether it is or can be shown that the defendant suffered pre judice from the lack of effective assistance of counsel. U.S. V. Taylor, 933 F.2d 307 (5th Cir. 1991). This should also apply where legal research resources or inv estigatory resources are being requested as in this case. When defendant is free from having counsel imposed on him as established in Faretta while being held in confinement pursuing a defense on his own, then the defendant should be provided access to law books or other tools to assist him in preparing a defense. U.S.C.A. (6) (Prisons <J=*4(13)). If no actual assistance for the accused defense is pro vided, the Constitutional guarantee has been violated. U.S.C.A. (6)(Criminal law <$zz? 641.1). While criminal trial is not a game in which the participants are ex pected to enter the ring with a near match in skill, neither is it a sacrifice of unarmed prisoner's to gladiators. (Criminal law 0=^*641.13(1)), the judiciary has an independent interest in ensuring that criminal trials appear fair to all who ob serve them and is required by Faretta, must act to maintain that fair balance. In diana V. Edwards, 554 U.S. 164 (2008); Wheat V. United States, 486 U.S. 153 (1988).

As noted by the Opinion of Justice Holcomb and Justice Johnson, in their dissent regarding the Court of Criminal Appeals action on the post conviction writ in Pan etti, (WR-37-145-03), concluding that the fairness interest attendant to trial was not met in that case, nor is it met here. Indiana V. Edwards, coupled with the op inion of the Texas Court ofCriminal Appeals, in Chadwick V. State, 309 S.W. 3d 558 (Tex.Crim.App. 2010), which is clearly demonstrated in that the pro se represent ation, while never the best course of action to pursue, was immensely hampered by the absence of legal research materials and reasonable access to law reference and case law publications. As established in United States V. Cronic 466 U.S. 648,653.

Whether a man is innocent cannot be determined from a trial in which denial of co unsel has made it impossible to conclude, with any satisfactory degree of certainty that the defendants case was adequate presented. The same applies in this case where the assistance of research materials and reasonable access to law reference and case law publications to prepare a defense was denied. When defendant has a right to refuse counsel, Brown V. Wainwright, 665 F.2d 607,610 (5th Cir. 1982), then the court should not attempt to force counsel on defendant as established in Fare tta, which could otherwise convert the appointment of counsel into a sham and noth ing more than a formal compliance with the Constitutions guarantee of the accused right to assistance. The Constitutions guarantee of assistance of counsel cannot be satisfied by mere formal appointment. United States V. Cronic, 466 U.S. 648,653.

Avery V. Alabama, 308 U.S. 444, 446. The pro se defendants Constitutional right to assistance is not based on the abandonment of a formal appointment of temporary co unsel. Since the right of self-representation entails a waiver of the right to co unsel, it cannot be said that a pro se defendant has abandoned his right to prepare his own defense, nor can it be said that a defendant doesn't have a right to do so outside of court attempting to impose counsel on him. The pro se filing of this Pe tition for Descretionary Review is proof that the defendant has a Constitutional Guarantee to access to law books or other tools to assist him in preparing a defen- se while held in confinement and long after the appointment of counsel is no long er available. The defendant must be able to follow the rules of the court and in this case it's clearly demonstrated that I was not able.

As established in Almendarez-Torres V. United States, 523 U.S. 224, the comm on law approach to determining elements was the well-established rule that if a st atute increased the punishment of a common law crime, whether felony or misdemean or based on some fact, then that fact must be charged in the indictment in order for the court to impose the increased punishment.

Therefore, facts that trigger such provisions must be charged by indictment, proven beyond a reasonable doubt and submitted to a Jury for its verdict. Jones V. United States, 119 S.Ct 1215 (1999) also citing United States V. Fisher, 25 F.Cas 1086 (cc Ohio 184). There is harm present, in that the conviction as it stands, by virtue of the punishment enhancement applicable, the appellant was subject to a sec ond degree felony punishment range. The Sixth Amendment provides the accused shall enjoy the right...to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him. United States V. Cronic. The state fail ed to confront the accused with the complainant, Tracy Adams. Mickens V. Taylor, 535 U.S. 162,166. Prejudice presumed where counsel was denied entirely or during a critical state of the proceeding.

II.

THE CONVICTION AND RESULTING SENTENCE WERE NOT SUPPORTED BY ADEQUATE EVIDENCE.

This case revolves around the conflicting testimony of my nephew, Jeremy Neil Frizzell Jr., the sum of his testimony is that he was struck during the course of conflict between mother and I. The alleged strike purportedly produced a red mark on his chest, but no other affliction. No medical treatment, lingering pain or in jury was resulting from the conflict. Further, the witness did effect a crude writ- ten statement recanting the allegation, which was accompanied by his mother's aff idavit of non prosecution. He also recanted the allegation while testifying in cau se number 13CCL-124 and in a 40 plus minute taped video interview that followed his testimony in 13CCL-124 (Protective Order Hearing) before trial. Physical impair ment, if alleged, must show that there was diminished function of a body organ. Ga rcia V. State, 367 S.W. 3d 683 (Tex. Crim.App. 2012). As shown in defendant's EX HIBIT (3), Jeremy Frizzell Jr., says he's fine, mother says he's fine. No medical treatment, no impairment, no injury. Lane V. State, 763 S.W. 2d 785 (Tex.Crim.App. 1989). The veracity of the complaining witness was tremendously subject to being put into question in this matter, which is the subject of the prior point of error asserted herein.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully pray's that this court vacate the verdict and sentence of the trial court, remanding the matter for new trial and such other and further relief as he may show himself deserving, at law and in equity.

CERTIFICATE OF COMPLIANCE

This is to certify compliance with the Texas Rules of Appellate Procedure in regard to the declaration of the total-WeseS-count \H , non exclusive of App endix material.

Jason Frizzell t<V\5\C(C{ GVVi \^ui\b(\Yb)

CERTIFICATE OF SERVICE

This is to certify that a copy of this Petition for Discretionary Review has been forwarded via U.S. Mail on 2?'/}UG~ 2.Q/S > to the office of the Houston County Attorney at the following address: 401 E. Houston Avenue, Crockett, Tx 75835 and to the State Prosecuting Attorney at the following address: P.O. Box 12405, Austin, Tx 78711.

•pPro Se p •• W c Petitioner Jason Frizzell \q\SW Cs\\i V_e.u3\b(\\t>}

APPENDIX A

OPINION OF THE 12th COURT OF APPEALS OF TEXAS

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 5,2015

NO. 12-14-00069-CR

JASON WAYNE FRIZZELL, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 349th District Court of Houston County, Texas (Tr.Ct.No. 13CR-183) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.

Panelconsisted of Worthen, C.J., Neeley, J. andBass, Retired!, Twelfth Court ofAppeals, sitting by assignment.

NO. 12-14-00069-CR

IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

JASON WAYNE FRIZZELL, § APPEAL FROM THE349TB APPELLANT

V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § HOUSTON COUNTY, TEXAS MEMORANDUM OPINION Appellant, Jason Wayne Frizzell, appeals his conviction for injury to a child. In two issues, Appellant contends that he was denied due process inthe conduct of the trial and that the evidence is insufficient to support his conviction. We affirm.

Background On September 13, 2013, Appellant got into an argument with his sister-in-law, Tracy Adams, in the front yard of Rhonda Musik's house. In the course of the argument, Appellant pushed Tracy Adams down. Jeremy Frizzell, Jr., age twelve, saw his mother on the ground beside the road and rushed to her defense. Appellant hit Jeremy with a closed fist, knocking him down, and left the scene.

Deputy Sheriff Lorenzo Simpson arrived at the location in response to a 911 call. On arrival, he found Jeremy crying. Jeremy told Deputy Simpson that his uncle had pushed his mother and hit him. Jeremy had superficial abrasions and bruises to the left upper side of his head. Jeremy had also been hit in the chest knocking his breath from him and causing him to fall to the ground. His knees were scraped, and he suffered minor bruising and discoloration to his back. At trial, Jeremy testified that the blow to his chest left a red mark, which hurt and temporarily made it difficult to- breathe. However, when an ambulance arrived, Jeremy and his mother refused any medical treatment. Appellant was arrested two days later.

At his arraignment, Appellant told the court that he wanted to represent himself. The trial court thoroughly admonished Appellant regarding the dangers ofself-representation. The trial court tried repeatedly to impress on him the gravity of his decision to proceed pro se and the likelihood that it was a mistake.

Appellant filed pretrial motions for a change of venue, for the appointment of a different judge, and for aspeedy trial. At the hearing on the motions, Appellant said that he needed access to a law library in order to prepare his defense. The trial court informed Appellant that a court appointed lawyer would give him access to research materials. Appellant persisted in his refusal to have a court appointed lawyer.1 After the jury returned a guilty verdict, Appellant requested the appointment of counsel for the punishment phase of the trial. Court appointed counsel consulted with Appellant on each of the three working days between his appointment and the start of the punishment phase.

Immediately before the beginning of the trial on punishment, Appellant told the court that his court appointed counsel was working against him. He requested more time to prepare or another lawyer. He rejected further representation by his court appointed attorney, preferring to represent himself if the court refused to appoint alternate counsel. The trial court denied his request for delay or for the appointment of another lawyer. Appellant declined to testify and offered no evidence. The jury assessed Appellant's punishment at imprisonment for twenty years.2 Access to Legal Research Materials In his first issue, Appellant complains that the trial court's denial of access to legal research materials while he represented himself denied him due process oflaw.

Applicable Law "The Sixth Amendment . . . grants to the accused personally the right to make his defense." Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562.

1Appellant's aversion to court appointed counsel is particularly difficult to understand. The record shows that only the year before, Appellant had been represented by court appointed counsel at his tnal on another charge and had been acquitted.

2Appellant had aprior felony conviction that was used to enhance the third degree felony injury to achild to asecond degree felony. See TEX. PENAL CODE ANN. §§ 22.04(f); 12.42(a) (West Supp. 2014).

Forcing adefendant to accept counsel against his will deprives the defendant of his constitutional right to defend himself. Id., 422 U.S. at 835, 95 S. Ct. at 2541. Adefendant electing to waive the right to counsel and represent himselfmust do so competently and intelligently. Id. However, the defendant's technical and legal knowledge is not relevant in determining his competence to waive his right to counsel. Id. The defendant's waiver of his right to counsel must be knowing and voluntary. Id. The record must show that he was made aware of the dangers and disadvantages of self-representation and that he made that choice "with eyes open." Id. Finally, the defendant's decision must be voluntary. Id. In United States v. Wilson, 666 F.2d 1241 (9th Cir. 1982), the defendant rejected court appointed counsel, but argued that the Sixth Amendment right to self-representation implies a right of access to legal facilities and materials necessary to prepare his defense. Id. at 1244. The court in Wilson noted the Faretta court's recognition that a defendant who rejects the assistance of counsel necessarily relinquishes many of the benefits associated with representation by counsel. Id. at 1245. Availability of court appointed counsel is a constitutionally adequate means of access to research materials. Id. "A defendant may not effectively force the Government to provide aparticular means ofaccess to the courts by denying the means offered." Id. Discussion On each ofthe several occasions that Appellant complained he required access to a law library to prepare his defense, the trial court informed him that court appointed counsel would provide the access to legal research materials. Each time the trial court reiterated its offer to appoint counsel to represent him, Appellant persisted in rejecting access through an attorney and insisted on being provideda law library.

The Wilson court noted that nowhere in Faretta did the Supreme 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." Id. Appellant was not denied due process. Appellant's first issue isoverruled.

Sufficiency of the Evidence In his second issue, Appellant maintains the evidence is insufficient to support his conviction.

In determining a challenge to the sufficiency of the evidence, the reviewing court must consider all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).

In order to prove the offense charged in this case, the State was required to establish beyond a reasonable doubt that Appellant intentionally, knowingly, or recklessly by omission caused bodily injury to a child. See TEX. PENAL CODE ANN. § 22.04(a)(3) (West Supp. 2014). "Bodily injury" means physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8) (West Supp. 2014). The complainant, Jeremy, made a crude written statement accompanied by an affidavit ofnonprosecution from his mother, recanting the accusation against his uncle. In his statement, he maintained that his difficulty inbreathing after his uncle hithim in the chestwas due to an asthma attack. Although a reluctant witness, Jeremy testified at trial that his uncle hit him in the chest knocking him to the ground. He testified that the blow caused pain, ' left a red mark on his chest, and made it difficult for him to breathe for a period oftime.

Deputy Simpson testified that when he arrived on the scene, Jeremy was mad and crying.

Jeremy said his uncle had hit him in the chest and knocked him down in the road. Deputy Simpson observed the red mark on Jeremy's chest as well as other minor bruises and abrasions to Jeremy's face, neck, knees, and back apparently sustained in the same incident. Through Deputy Simpson, the State introduced photographs ofJeremy's injuries.

The evidence is sufficient to support the conviction. Appellant's second issue is overruled.

Disposition Having overruled Appellant's two issues, we affirm the judgment ofthe trial court.

Bill Bass Justice

Opinion delivered August 5,2015.

Panel consisted ofWorthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court ofAppeals, sitting by assignment.

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