ACCEPTED 06-15-00121-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/28/2015 3:22:13 PM DEBBIE AUTREY CLERK
No. 06-15-00121-CR
FILED IN 6th COURT OF APPEALS IN THE COURT OF APPEALS TEXARKANA, TEXAS 12/28/2015 3:22:13 PM FOR THE SIXTH DISTRICT OF TEXAS DEBBIE AUTREY Clerk
BILLY JOE SELMAN
Appellant
VS.
THE STATE OF TEXAS
Appellee
BRIEF OF APPELLEE
On Appeal from the County Court at Law of Hill County, Texas in Cause No. M0890-14. Hon. Matt Crain, Presiding
ORAL ARGUMENT NOT REQUESTED STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.7, the State
waives oral argument in this case unless this Court determines that oral argument is
necessary. The State believes that the facts and legal arguments are adequately
presented in the briefs and record, and that the decision process would not be
significantly aided by oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of the
names of all interested parties follows:
Presiding Judge at Trial • The Honorable Matt Crain (pretrial and trial), County Court at Law, Hill County, Texas.
Attorneys for the State • Hon. R. David Holmes (trial and appeal), County Attorney for Hill County, P.O. Box 253, Hillsboro, Texas 76645.
Attorneys for Appellant • Mr. Scott Phillips (trial), 711 W. Elm, Hillsboro, Texas 76645. • Mr. Richard De Los Santos (appeal), 202 S. Main Street, Cleburne, Texas 76033.
Appellant • Billy Joe Selman
ii TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT……………………………...ii
LIST OF INTERESTED PARTIES………………………………………………..ii
TABLE OF CONTENTS………………………………………………………….iii
INDEX OF AUTHORITIES……………………………………………................iv
STATEMENT OF THE CASE…………………………………………………….1
STATEMENT OF FACTS…………………………………………………………1
SUMMARY OF ARGUMENT…………………………………………………….4
ARGUMENT
I. The Court did not err in denying Appellant’s request to represent himself……………………………………………….4
II. The State did not fail to prove the elements of Evading Arrest and there was no Fourth Amendment Violation………………………….7
III. The State did not violate a Discovery request under 39.14……………...9
CONCLUSION…………………………………………………………………...12
CERTIFICATE OF COMPLIANCE……………………………………………...13
CERTIFICATE OF SERVICE……………………………………………………14
iii INDEX OF AUTHORITIES
CASES
Bekendam v. State, 441 S.W.3d 295 (Tex. Crim App. 2014)………………………………….7, 8
Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1993)……………………………………8
Collier v. State, 959 S.W.2d 621 (Tex. Crim. App. 1997)…………………………………4, 5
Faretta v. California, 422 U.S. 806 (1975)………………………………………………………4, 5
Garza v. State, 126 S.W.3d 79 (Tex. Crim. App. 2004)…………………………………..7, 8
Godinez v. Moran, 509 U.S. 389 (1993)…………………………………………………………5
Gowan v. State, 927 S.W.2d 246 (Tex. App.—Fort Worth 1996, pet. ref’d)…………………9
Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998)……………………………………9
Kinnamon v. State, 791 S.W.2d 84 (Tex. Crim. App. 1990)………………………......................9
Little v. State, 758 S.W.2d 551 (Tex. Crim. App. 1988)……………………………………9
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)…………………………………....8
Moor v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012)……………………………………7
iv Nelson v. State, 626 S.W.2d 535 (Tex. Crim. App. 1981)…………………………………7, 8
Taylor v. State, 93 S.W.3d 487 (Tex. App.—Texarkana 2002, pet. ref’d)…………………10
Williams v. State, 995 S.W.2d 754 (Tex. App.—San Antonio, no pet.)………………………10
Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010)……………………………………7
STATUES
U.S. CONST. amend. IV…………………………………………………………8, 9
U.S. CONST. amend. VI…………………………………………………………….4
U.S. CONST. XIV § 1……………………………………………………………….4
TEX. CODE CRIM. PROC. ANN. art. 1.051 (West 2013)…………………………..5, 6
TEX. CODE CRIM. PROC. ANN. art 39.14 (West 2013)……………………...9, 10, 11
TEX. R. APP. Rule 33.1 (West 2013)………………………………………………..7
v STATEMENT OF CASE
Mr. Billy Joe Selman, hereinafter “the Appellant,” was arrested for the crime
of “Evading Arrest or Detention” on September 9th, 2013, in Hubbard, Hill
County, Texas. An Information and Complaint for the offense was filed with the
Hill County District Clerk’s Office on November 26th, 2014. Appellant’s case
came to trial on May 19th, 2015, in the Hill County Court at Law with the
Honorable Matt Crain presiding. A jury found Appellant guilty of the alleged
crime, and the trial court assessed punishment of eight months in the county jail,
with credit for any time already served. Appellant timely filed an appeal on May
29th, 2015, which is now before this Court.
STATEMENT OF FACTS
On September 9th, 2013, Officer Darlin Lebel of the Hubbard Police
Department was dispatched to 609 Farm-to-Market Road 2114 in Hubbard, Hill
County, Texas, at about 7:27am in response to a criminal trespass call. (VI R.R. at
86-87, 104). It was light outside already, and Officer Lebel was wearing her
standard issue police uniform, with patches and gold badge affixed, and she was
driving her police squad car that had “Hubbard Police” printed on both sides of the
vehicle, with an emergency light-bar affixed on top (VI R.R. at 85-86, 104-105).
Due to the small size of the community of Hubbard, Texas, Officer Lebel was
1 personally familiar with Appellant’s appearance and the property of Mr. Shawn
Gilham, where she was dispatched on the morning of September 9th, 2013. (VI
R.R. at 88-89, 95). When she arrived at the Gilham residence at 609 FM 2114, she
saw Appellant towards the back of the property, crouched low to the ground,
digging in the dirt. (VI R.R. at 87). Knowing that the property was not Appellant’s
due to her familiarity with the area, and in response to being dispatched for a
“criminal trespass” call, she exited her vehicle and began to approach Appellant on
foot. (VI R.R. at 90). Hubbard Police Department’s Policy for “criminal trespass”
calls is to issue a warning citation that needs to be signed by recipient of the
warning. (VI R.R. at 98). When she approached Appellant on foot at the Gilham
property, Appellant stared at her and kept digging in the dirt. (VI R.R. at 90).
When Appellant would not stop digging, Officer Lebel instructed him to
stop, but in response to her order, he got up and ran away from her. (VI R.R. at
91). She saw him run towards, and get into a vehicle she knew belonged to
Appellant’s sister, Robin Selman; Officer Lebel had also seen the Appellant
previously drive around Hubbard, Texas, inside the same vehicle. (VI R.R. at 92).
Officer Lebel then pursued Appellant in her squad car to his residence, where she
saw Appellant run inside a house she knew to be his and his mother’s residence.
(VI R.R. at 93-94). Because Appellant would not open the door at her request,
Officer Lebel contacted the homeowner and co-tenant of the property Linda
2 Selman, Appellant’s mother. (VI R.R. at 99-100, 116). Linda Selman subsequently
gave consent to Chief Patrick of the Hubbard Police Department to enter her home.
(VI R.R. at 117). Once inside, Chief Patrick announced who he was several times
(each time he entered a new room inside the house), but received no response from
Appellant. (VI R.R. at 125-126). Appellant was subsequently found hiding within
a closet with a blanket covering his body. Once found, Appellant was arrested for
evading arrest or detention. (VI R.R. at 125-126).
3 SUMMARY OF ARGUMENT
All three of Appellant’s Points of Error should be overruled. Appellant’s
First Point of Error should be overruled because the Appellant withdrew his own
waiver of counsel after he was admonished of the dangers of self-representation.
Appellant’s Second and Third Points of Error should be overruled because they
were not properly preserved at the trial court level. Additionally, Appellant’s
Third Point of Error should be overruled because even if it had been properly
preserved, the State did not violate an order compelling discovery under Article
39.14 of the Texas Code of Criminal Procedure.
I. Appellant’s First Point of Error should be overruled because the trial court did not err in denying Appellant’s request to represent himself after Appellant withdrew his waiver of counsel.
Appellant’s First Point of Error should be overruled because after the trial
court admonished Appellant of the dangers of self-representation, Appellant
withdrew his waiver of counsel. 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.
Collier v. State, 959 S.W.2d 621, 625-26 (Tex. Crim. App. 1997) citing Faretta v.
California, 422 U.S 806, 807–808 (1975). Those same amendments also guarantee
that any such defendant may dispense with counsel and make his own defense. Id.
4 Such a decision, to be constitutionally effective, must be made (1) competently, (2)
knowingly and intelligently, and (3) voluntarily. Id. citing Godinez v. Moran, 509
U.S. 389, 400–401 (1993); Faretta, 422 U.S. at 834–836. 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, 422 U.S. at 834–
836. The decision is made “voluntarily” if it is uncoerced. Godinez, 509 U.S. at
401 n. 12.
Article 1.051 of the Texas Code of Criminal Procedure proscribes that if “a
defendant wishes to waive the right to counsel for purposes of entering a guilty
plea or proceeding to trial, the court shall advise the defendant of the nature of the
charges against the defendant and, if the defendant is proceeding to trial, the
dangers and disadvantages of self-representation.” Tex. Code Crim. Proc. Ann.
Art. 1.051(g) (West 2013). If the wavier is made voluntarily and intelligently, then
“the court shall provide the defendant with a statement substantially in the
following form, which, if signed by the defendant, shall be filed with and become
part of the record of the proceedings.” Id.
I have been advised this ____ day of _______, 2____, by the (name of court) Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed 5 with my case without an attorney being appointed for me. I hereby waive my right to counsel. (Signature of defendant). Id.
However, a defendant may withdraw his waiver of the right to counsel at
any time. Tex. Code. Crim. Proc. Ann. Art. 1.051(h) (West 2013). In this
particular case, the Appellant signed and presented a waiver to the trail court
indicating that he either 1) wished to represent himself or 2) hire another attorney.
(VI R.R. at 9-10). Prior to the venire panel being qualified, the trial court inquired
into Appellant’s possible waiver of counsel that he submitted to the court. (VI R.R.
at 9-10). Appellant explained that he wanted to fire his current counsel to either
hire another attorney or proceed with the trial on his own. (VI R.R. at 10).
Appellant cited dissatisfaction with his trial counsel as his reason for wanting to
hire another attorney or proceed on his own. (VI R.R. at 11-12). The trial court
informed him that his trial counsel had prepared oral motions and a voir dire
presentation for the trial. (VI R.R. at 12). The trial court also admonished
Appellant of the dangers and difficulties of self-representation, particularly that he
would be expected to know the rules of evidence and procedure. (VI R.R. at 10-
11). Having been fully admonished, the Appellant withdrew his waiver:
Reporter Record Volume VI, Page 12, Line 13 Trial Court: …Are you okay with going forward today with him as your assisted—him as your attorney? Appellant: I’ll allow due process the opportunity to work, yes, sir. Trial Court: Okay. So you’re okay with Mr. Phillips representing you today. Appellant: Today, yes. 6 As there is nothing within the record indicate that Appellant was threatened,
coerced, or deceived by either the trial court or any other party into withdrawing
his waiver of counsel, his withdrawal of the waiver appears to have been made
knowingly and intelligently after the appropriate admonishments from the trial
court. Having withdrawn his waiver, the trial court could not grant Appellant’s
waiver of counsel without violating his right to counsel. Therefore, Point of Error
One should be overruled.
II. Appellant’s Second Point of Error should be overruled because it was not preserved.
Appellant’s Second Point of Error should be overruled because it was not
preserved at the trial court level. A party that intends to appeal an error made at
the trial court level must adequately preserve each claim of error by appropriate
action in the trial court. Tex. R. App. Proc. Ann. 33.1 (West 2013); Bekendam v.
State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014); Wilson v. State, 311 S.W.3d
452 (Tex. Crim. App. 2010). If claimed error is not preserved, it may not be
reviewed on appeal. Moore v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012). To
preserve error, the record must show that appellant made a timely request,
objection, or motion, and that the trial court ruled on it. Garza v. State, 126 S.W.3d
79, 81-82 (Tex. Crim. App. 2004); Tex. R. App. Proc. 33.1(a)(1); Nelson v. State, 7 626 S.W.2d. 535, 536 (Tex.Crim.App.1981). The purpose of requiring an
objection is to give to the trial court or the opposing party the opportunity to
correct the error or remove the basis for the objection. Bekendam v. State, 441
S.W.3d 295, 299 (Tex. Crim. App. 2014). By affording the judge an opportunity
to rule on an objection, the court is able to decide whether the evidence is
admissible. Garza, 126 S.W.3d at 82. No such opportunity was afforded the trial
court nor the State in Appellant’s case, as there was no written or oral motion to
suppress argued by Appellant based upon a Fourth Amendment violation in the
instant case.
Though there were objections made based upon possible Crawford
violations and hearsay statements, none were made about the lawfulness of the
arrest of Appellant under the Fourth Amendment. Additionally, there is no
argument by Appellant that this issue involves one of the two categories of errors
that could constitute either “absolute rights” or “waivable-only rights” under Marin
v. State that could justify this Court considering it for the first time on appeal.
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) overruled in part by Cain
v. State, 947 S.W.2d 262, 265 (Tex. Crim. App. 1997) (overruling Marin insofar as
it suggests that absolute rights are, by their nature, immune from harmless error
analysis).
8 Moreover, rights under the Fourth Amendment have been found to be one of
the many rights that fall within the “forfeitable rights” category under Marin that
requires preservation of error at the trial court level before being considered on
appeal. Hulit v. State, 982 S.W.2d 431, 440 (Tex. Crim. App. 1998) citing Little v.
State, 758 S.W.2d 551, 564 (Tex.Crim.App.1988). Because Appellant did not
adequately preserve error on this issue of an alleged Fourth Amendment violation
by objecting to the legality of his arrest during trial or during a pre-trial hearing,
Appellant’s Second Point of Error should be overruled.
III. Appellant’s Third Point of Error should be overruled because the State did not violate a Discovery Order under Article 39.14 of the Code of Criminal Procedure and Appellant did not preserve his Third Point of Error.
Appellant’s Third Point of Error should be overruled because Appellant did
not adequately preserve this error for appeal. First, there is nothing in the record to
indicate that the trial court ever issued an order compelling discovery from the
State under Article 39.14 of the Code of Criminal Procedure. Second, had the trial
court issued a discovery order under Article 39.14, Appellant waived this issue on
appeal when defense counsel did not object during trial and move for a
continuance after the allegedly-withheld evidence was referenced during trial.
Prior to the enacting of the Michael Morton Act, defendants in Texas did not enjoy
a general right to discovery upon a written request to the State. See Gowan v. State, 9 927 S.W.2d 246, 249 (Tex. App.—Fort Worth 1996, pet. ref’d) citing Kinnamon v.
State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990). In 2013, Article 39.14 of the
Texas Code of Criminal Procedure proscribed a conditional right to discovery for
certain materials within the possession of the State only after a motion from the
defendant and a subsequent order from the trial court:
(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.
Tex. Code. Crim. Proc. Ann. art. 39.14 (West 2013) (emphasis added). When
previously withheld evidence is disclosed at trial in violation of a discovery order,
the defendant has an opportunity to request a continuance on the basis of that
violation. Taylor v. State, 93 S.W.3d 487, 502 (Tex. App.—Texarkana 2002, pet.
ref’d). However, failure to request a continuance waives any violation of a
10 discovery order. Id. citing Williams v. State, 995 S.W.2d 754, 762 (Tex. App.—
San Antonio, no pet.).
In this particular case, though trial counsel for the Appellant did request
discovery from the State, counsel never filed a motion with the trial court
requesting that the State be ordered to produce items listed in the discovery
request. The trial court even invited defense counsel during a pre-trial status
hearing to confer with the State on February 10th, 2015, on items that had been
produced, and items that had not. (III R.R. at 4). At no point during this status
hearing, before trial, or during trial, did defense trial counsel move for the trial
court to order discovery under Article 39.14. Moreover, even had the trial court
ordered discovery from the State, Appellant waived any alleged discovery order
violations by not objecting during trial. As Appellant cited in his brief, when
defense trial counsel elicited testimony from Officer Lebel during cross-
examination that her squad car was equipped with a dash-mounted camera at the
time of Appellant’s arrest, there was no objection or motion for continuance on the
basis of previously withheld evidence. (VI R.R at 106-108) Without an order from
the trial court under Article 39.14 as it existed in 2013, much less an objection by
the Appellant during trial for an alleged violation of such a discovery order, such
an issue is waived on appeal. Therefore, Appellant’s Third Point of Error should
be overruled.
11 CONCLUSION
It is respectfully submitted that all three points of error be overruled and the
conviction should be affirmed.
Respectfully submitted,
____/s/R. David Holmes____ R. David Holmes State Bar No: 24035160 County Attorney Hill County, Texas P.O. Box 253 Hillsboro, TX 76645 254-582-4047 Fax: 254-582-4013 dholmes@co.hill.tx.us
12 CERTIFICATE OF COMPLIANCE
I certify that the State’s brief contains 2,709 words in compliance with Rule
9.4 of the Texas Rules of Appellate Procedure.
_____/s/ R. David Holmes____
13 CERTIFICATE OF SERVICE
I certify that a copy of the State’s Response Brief has been e-filed and sent
by regular mail on December 28, 2015, to the attorney for Appellant at the
following address:
ATTORNEY FOR APPELLANT
Richard De Los Santos 202 S. Main Street Cleburne, Texas 76033