Opinion
NO. 14-16-00445-CR
12-06-2016
DOV K. AVNI, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 2 Harris County, Texas
Trial Court Cause No. 5655
MEMORANDUM OPINION
This appeal lies from appellant's municipal court conviction for constructing a structure without a permit. Appellant was charged with constructing a structure without a permit in violation of Houston Building Code section 110.5. Houston, Tex., Building Code § 110.5. Appellant entered a plea of not guilty, waived his right to trial by jury, and proceeded to trial before the court. Appellant represented himself at trial. Appellant was found guilty and assessed a fine of $1,000.00 and costs of court. Appellant filed a motion for new trial, which was overruled. Appellant filed a timely notice of appeal, but failed to file a brief in the county court. The county court reviewed appellant's conviction on the record and affirmed. See Tex. Gov't Code Ann. § 30.00027 (West Supp. 2016).
In a municipal appeal filed in the court of appeals, the record and briefs on appeal in the county court constitute the record and briefs on appeal to the court of appeals. Tex. Gov't Code Ann. § 30.00027(b)(1). Contained within the record filed in this court is a reporter's record from appellant's municipal court bench trial. The record reveals the following events.
City of Houston Building Inspector David Crawford testified that he was dispatched to an address at 645 11½ Street in Houston, Texas on a citizen complaint. Appellant told Crawford he was the owner of the apartment complex at that address. Crawford discovered that a new structure was being built without a permit. Crawford testified that the structure being built was the type that required a permit from the City of Houston. Crawford testified that the property was located within the City of Houston.
Despite admitting ownership to Crawford, appellant testified that he was not the owner of the property. Appellant introduced into evidence a 1918 map, which, according to appellant, showed that the property was not located in the City of Houston.
At the conclusion of the bench trial, the trial court found appellant guilty of constructing a structure without a permit and assessed a fine of $1,000.00. Appellant filed a timely motion for new trial. According to the county court's opinion, "[t]he motion was nine pages long with exhibits, and set out at least fourteen points of error." The motion was overruled, and appellant filed a timely notice of appeal, and posted a timely appellate bond. See Tex. Gov't Code Ann. § 30.00014(d) (West Supp. 2016), § 30.00015(a) (West 2004).
Appellant did not file a brief in the county court as required by section 30.00021 of the Texas Government Code. The county court determined that section 30.0014(b) of the Government Code, providing for an appeal to the county court, does not dispense with the need for an appellant to prepare and file a formal appellate brief in the county criminal court. Rather than dismiss the appeal for want of prosecution, the county court followed the procedure utilized in the courts of appeals, and reviewed the record for fundamental error in the interest of justice. See Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus Christi 2008, no pet.); Scott v. State, 167 S.W.3d 62, 66 (Tex. App.—Waco 2005, pet. ref'd).
The county court reviewed the record for fundamental error, taking into account the following potential errors identified in Scott, 167 S.W.3d at 66:
• absence of jurisdiction over the person of the defendant;In reviewing the record, the county court determined:
• absence of subject-matter jurisdiction;
• prosecution under an ex post facto law;
• denial of the right to counsel;
• denial of the right to a jury trial;
• denial of 10 days' preparation before trial for appointed counsel;
• holding trials at a location other than the county seat;
• comments by a trial judge that taint the presumption of innocence; and
• jury charge errors resulting in egregious harm.
A criminal prosecution in municipal court is initiated by the filing of a complaint. Tex. Code Crim. Proc. Ann. art. 45.018 (West 2006). The complaint filed against Appellant tracked the elements of the offense of constructing a structure without a permit, an offense under the
Building Code. Houston, Tex., Building Code § 110.5. The complaint was sufficient to vest the municipal court with jurisdiction over Appellant. Bird v. State, 927 S.W.2d 136, 141 (Tex. App.—Houston [1st Dist.] 1996, no pet.). The criminal case arose out of municipal ordinances which govern fire safety and public health, and was punishable by a fine not to exceed $2,000. Houston, Tex., Building Code § 113.1. Consequently, the municipal court had subject matter jurisdiction. Tex. Code Crim. Proc. Ann. art. 4.14(a)(1), 4.14(a)(2)(A) (West Supp. 2015). The record shows Appellant was admonished orally and in writing of his right to counsel, and chose to proceed pro se. [footnote omitted] The record also shows that Appellant waived his right to trial by jury in writing. Appellant did not ask for appointed counsel, demand a jury trial, or request more time to prepare for trial. None of the other matters listed in Scott are supported by the record.
The Government Code requires that the briefs used in the county criminal court shall be the briefs used in this court. See Tex. Gov't Code Ann. § 30.00027(b). The court of appeals will not consider briefs in a municipal appeal other than those filed in the county court. See Brooks v. State, 226 S.W.3d 607, 609 n. 3 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (court would not consider briefs filed in appellate court because the briefs in the county criminal court constitute the briefs in the court of appeals.); see also Montpas v. State, Nos. 05-99-00463-CR, 05-99-00464-CR, 05-99-00465-CR; 2000 WL 140545 (Tex. App.—Dallas Feb. 8, 2000, no pet.) (not designated for publication) (striking briefs filed in court of appeals in municipal appeal).
On the basis of the trial court's findings, this court has considered the appeal without briefs. See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994) (affirming conviction on record alone where appellant failed to file a pro se brief after being properly admonished); Coleman v. State, 774 S.W.2d 736, 738-39 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (holding that appeal may be considered without briefs "as justice may require" when a pro se appellant has not complied with the rules of appellate procedure). We find no fundamental error.
Accordingly, the judgment of the county criminal court at law is affirmed.
PER CURIAM Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).