Ex Parte Barlow Smith ( 2016 )

ACCEPTED 03-16-00048-CR 14395716 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/21/2016 9:54:56 AM JEFFREY D. KYLE CLERK Cause No. 03-16-00048-CR Barlow Smith, In the Court of Appeals Appellant FILED IN 3rd COURT OF APPEALS v. for the Third Judicial District AUSTIN, TEXAS 12/21/2016 9:54:56 AM JEFFREY D. KYLE The State of Texas Clerk APPELLANT’S REPLY TO APPELLEE’S RESPONSE TO HIS MOTION FOR RECONSIDERATION EN BANC Procedure The State argues that Appellant’s Motion should be rejected as untimely. When Appellant efiled his Motion on October 12, his server showed that it had been received; and counsel for the State was served pursuant to the program of the server. Appellant awaited court action. When he finally inquired of the clerk’s office, he was told that a voice message had been left for him on November 29 that the Motion had been rejected because it lacked proof of service and a word count. He did not receive this message. Of course, if he had, he would have corrected the deficiencies promptly, as he did immediately on December 12. On that day he re- submitted his Motion with the appropriate corrections and without any other alteration in the document. He was told by Mr. Kyle, the Clerk of Court, that a motion for extension of time was not necessary because his filing on October showed good faith compliance. Appellant asks the Court to rule accordingly. Substance The State argues that Appellant’s analysis of the rule regarding self-representation, the “exception,” as counsel terms it, is erroneous because it has never been validated by the United States Supreme Court or by Texas courts—not a valid conclusion. It is only accurate to state that Appellant’s form of self-representation has never been ruled on by these courts. Quoting Abraham Lincoln adds no authority to the State’s argument. Counsel further warns of repetitive abuse by conniving attorney-defendants should Appellant’s analysis of the rule of self-representation be accepted. Appellant is confident that this improbable speculation will not disrupt the Court’s orderly disposition of this case. Counsel for the State reiterates the assertion he made in the State’s Response to Appellant’s Brief that Appellant argued facts not in evidence. Appellant will not here repeat the arguments and authority made in his Reply Brief that counsel misapprehended the unique jurisprudence laid down by the Texas Court of Criminal Appeals: whether the facts, if true, establish ineffective representation of counsel; if so, the case is remanded to the trial court to establish the facts as evidence for proper review by the appellate court. Most important is that the State’s arguments above obscure a crucial feature of this case, that Appellant’s defense of himself was markedly impaired by the cognitive and affective effects of medication prescribed by his physician consistent with the scientific abstracts offered. Conclusion Appellant’s original submission of his Motion was made in good faith and would have been timely but for formal deficits which he corrected immediately upon being informed thereof. The State offers no legal citation negating Appellant’s analysis regarding the self- representation rule. Implementation of Appellant’s analysis of the rule would not disrupt its proper application to lay defendants or deluge the appellate courts with abusive repetition. The State’s arguments obscure a major feature of Appellant’s case, the calamitous effects of medication prescribed for Appellant. Prayer Wherefore, Appellant prays that this Court grant his Motion for Reconsideration en banc. CERTIFICATE OF SERVICE The undersigned certifies hereby that on December 21, 2016 he served upon Gary Bunyard, Assistant District Attorney for Burnet County. a true copy of APPELLANT’S REPLY TO APPELLEE’S RESPONSE TO HIS MOTION FOR RECONSIDERATION EN BANC in the within cause at his email address, g.bunyard@co.llano.tx.us. Respectfully submitted, / s/ Barlow Smith Attorney for Appellant, pro se State Bar #18536020 605 Camino Cielo Marble Falls, TX 78654-5926 telephone: (830)265-0892 facsimile: (866)221-2327 email: barlowsmithmd@yahoo. Word count: 605