Opinion
03-23-00056-CR
02-22-2024
Vicente Agapito Rosales, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY NO. 2021 CR0870, THE HONORABLE RANDAL C. GRAY, JUDGE PRESIDING
Before Byrne, Chief Justice Kelly and Theofanis, Justices
MEMORANDUM OPINION
Chari L. Kelly, Justice.
Appellant Vicente Agapito Rosales was charged with the offense of driving while intoxicated. See Tex. Penal Code § 49.04(d). After Rosales pleaded guilty to the charged offense, the trial court sentenced him to 365 days' confinement in county jail, plus a $480 fine and $64 in restitution, but suspended the imposition of the sentence and placed him on community supervision for eighteen months. Rosales, representing himself pro se, filed a notice of appeal from his conviction.
Rosales's brief was originally due on May 12, 2023, but no brief was filed. The Clerk of the Court sent written notice to Rosales, informing him that his brief was overdue and advising him that if the Court did not receive a motion for extension of time or a brief accompanied by a motion for extension of time on or before August 7, 2023, the cause would be submitted for consideration on the record alone. Rosales did not respond to the notice, file a motion for extension of time, or file a brief.
Rule 38.8 of the Texas Rules of Appellate Procedure provides that, under certain circumstances, an appellate court in a criminal case may consider an appeal without briefs, "as justice may require." Tex.R.App.P. 38.8(b)(4); see Tex. Code Crim Proc. art. 44.33(b) (providing that appellant's failure to file brief shall not authorize dismissal of appeal); Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994) (affirming conviction on record alone where appellant failed to file pro se brief after being properly admonished of dangers of pro se representation). After being properly admonished in the trial court, Rosales acknowledged that he is not indigent and that he has voluntarily chosen to proceed pro se. Further, despite being given the opportunity to file an appellate brief, he has failed "to make any arrangements for filing a brief." See Tex. R. App. P. 38.8(b)(4). Therefore, we submitted the case without the benefit of briefs, and having reviewed the record in this appeal, find no unassigned fundamental error. See Lott, 874 S.W.2d at 688 (affirming judgment after finding "no unassigned fundamental error"); see also Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002) (listing types of error that are fundamental). Accordingly, the judgment of conviction is affirmed.
No reporter's record was filed in this appeal, and Rosales did not respond to this Court's written request that he provide proof that he had made arrangements to pay for preparation of the reporter's record. See Tex. R. App. P. 37.3(c) (allowing appellate court to "decide those issues or points that do not require a reporter's record").