### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00074
- CR

Vicente Agapito Rosales , Appellant

v. The State of Texas , Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY NO. 2022CR1114, THE HONORABLE RANDAL C. GRAY, JUDGE PRESIDIN G

M E M O R A N D U M O P I N I O N
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 pursuant to a plea agreement, the trial court sentenced him to 365 days’ confinement in county jail, a $480 fine , and $64 in restitution but suspended the imposition of the sentence and placed him on community supervision for 18 months. T he trial court certified that this is a plea -bargai n case but that Rosales has the right to appeal from ru lings on pretrial written motions. Rosales, representing himself pro se, filed a notice of appeal from his conviction. Rosales ’ s brief was originally due on April 28, 2023, but no brief or motion for
exte nsion of time 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 or2 before June 19 , 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 P rocedure provi des 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 failu re to file br ief shall not authorize dismissal of appeal); Lott

v. State , 874 S.W.2d 687, 688 (Tex. Crim. App. 1994) ( appl ying predecessor to Rule 38.8 ) ; Burton v. State , 267 S.W.3d 101, 103 (Tex. App.

— Corpus Christi

– Edinburg 2008, no pet.) (explaining that analysis fr om L ott also applies under Rule 38.8); see also Renfro v. State , No. 03

- 10

- 00011

- CR, 2011 WL 4507320, at *1 (Tex. App.

— Austin Sept. 29, 2011, no pet.) (mem. op., not designated for publication) (explaining that hearing under Rule 38.8 is unnecessary where appe llant rep resented himself at trial and on ap peal, where indigency determination is not being challenged, and where appellant demonstrated his abandonment of appeal by failing to file brief). In those circumstances, appellate courts review the record fo r the prese nce of unassigned fundamental error. See Burton , 267 S.W.3d at 103. 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 t rial 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 Texa s Co nstitutio n; (7) jury

- charge errors resul ting in egregious harm; (8) trials being held in a location other than the county seat; (9) prosecution under an ex post facto law; and3 (10) comments made by a trial judge that taint the presumption of innocence. Sa ldano v. State , 70 S.W.3d 873, 887

– 89 (Te x. Crim. App. 2002). 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 oppor t uni ty to fil e an appel late brief, he has failed “to m ake any arrangements for filing a brief.” See Tex. R. App. P. 38.8(b)(4). Therefore, we submitted the case without briefs and having reviewed the record in this appeal, find no unassigned fundament al e rror. 1 See Lott , 874 S.W.2d at 688 ; see also Renfro , 2011 WL 4507320, at *2 (reviewing record for fundamental error and affirming conviction where indigent appellant was representing himself and failed to timely file his appellant ’ s brief). According ly, the judgment of conviction is affirmed. 2

__________________________________________ Rosa Lopez Theofanis , Justice Before Chief Jus tice Byrn e, Ju stices Kelly and Theofanis Affirmed Filed: May 3, 202 4 Do Not Publish

1 No reporter ’ s record was filed in this appeal, and Rosales did not respond to this Court ’ s wri tten requ est that he provide proof that he had made arrangements to pay for p reparation 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”).

2 In his notice o f a ppeal, Rosales states, “ I call u pon a writ of mandamus and do not consent to the charges of this case and reserve my right as a non - resident. ” To the extent that Rosales intends his notice of appeal to serve a s a petition for writ of m andamus, he i s in er ror
. See Tex. R. App. P. 52.1 . Moreove r, R osales did not assert , much less sho w , that he has no other adequate remedy at law to address th e alleged error or that the act he seeks to compel is purely ministerial. See State ex rel. Hi ll v. Cou rt of Appeal s for Fifth Dist. , 34 S.W.3d 924, 927 (Tex. Crim. App. 2001)

. Any petition is therefore without merit and denied

.