Opinion
03-23-00757-CR
08-09-2024
Jose Guadalupe Medina, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM COUNTY COURT AT LAW NO 3 OF HAYS COUNTY NO. 20-2673CR-2, THE HONORABLE CHRISTOPHER P. JOHNSON, JUDGE PRESIDING
Before Justices Baker, Smith, and Theofanis
MEMORANDUM OPINION
Thomas J. Baker, Justice
Jose Guadalupe Medina pleaded no contest to the charge of driving while intoxicated, and the trial court placed him on deferred-adjudication community supervision for fifteen months. See Tex. Penal Code § 49.04; Tex. Code Crim. Proc. art. 42A.101. After Medina was placed on deferred-adjudication community supervision, his retained attorney filed a notice of appeal. Medina's retained attorney later filed a motion to withdraw as counsel, and this Court granted the motion. See Tex. R. App. P. 6.5. Medina's appellant's brief was due on May 1, 2024. On June 10, 2024, this Court sent Medina a notice stating that his appellant's brief was overdue and that a failure to file a satisfactory response by June 20, 2024, would result in further action being taken by this Court. No brief or request for an extension by Medina was filed, and Medina did not otherwise respond to this Court's notice that the brief was overdue.
For those reasons, we abated the appeal and remanded the cause to the trial court to hold a hearing to admonish Medina about this right to be represented by counsel and the dangers and disadvantages of proceeding pro se and to determine whether he desired to pursue this appeal, whether he wanted to proceed pro se, and whether he was indigent. See Tex. Code Crim. Proc. art. 1.051(g); Tex.R.App.P. 38.8(b)(2), (3), 43.6. After convening the hearing, the trial court made the following findings of fact and conclusions of law:
Findings of Fact
1. This matter was set for Hearing at 1:30 p.m. on July 15, 2024.
2. Notice of the setting was sent to Appellant via certified mail on July 8, 2024.
3. Said Notice was received by Appellant on July 10, 2024.
4. Appellant failed to appear for the Hearing. Extra time was accorded to Appellant who still failed to appear.
Conclusions of Law
5. Appellant has abandoned the Appeal; Appellant does not desire to prosecute his Appeal.Once this Court received a supplemental record containing the trial court's findings and conclusions, we reinstated the appeal.
For cases like this one, Rule of Appellate Procedure 38.8 authorizes appellate courts to consider an appeal without briefs as justice may require if the trial court has found that the appellant no longer desires to prosecute his appeal or that he has abandoned the appeal. See Tex. R. App. P. 38.8(b). In those circumstances, appellate courts review the record for the presence of unassigned fundamental error. See Burton v. State, 267 S.W.3d 101, 103 (Tex. App.-Corpus Christi-Edinburg 2008, no pet.). The Court of Criminal Appeals has explained that the following types of errors are fundamental: (1) denial of the right to counsel; (2) denial of the right to a jury trial; (3) denial of ten days' preparation before trial for appointed counsel; (4) absence of jurisdiction over the defendant; (5) absence of subject-matter jurisdiction; (6) prosecution under a statute that violates the separation-of-powers provision of the Texas Constitution; (7) jury-charge errors resulting in egregious harm; (8) trials being held in a location other than the county seat; (9) prosecution under an ex post facto law; and (10) comments made by a trial judge that taint the presumption of innocence. Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002).
In the interest of justice, we have reviewed the record in this case and found no fundamental error. See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994); see also Lanehart v. State, 76 S.W.3d 139, 140 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (reviewing record for fundamental error and affirming conviction where appellant failed to appear for Rule 38.8 hearing and where trial court determined that appellant abandoned his appeal).
Accordingly, we affirm the trial court's order of deferred adjudication.
Affirmed