IN THE

TENTH COURT OF APPEALS

No. 10-15-00412-CR

NOLAN MICHAEL SHULTZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Navarro County, Texas

Trial Court No. 70470

MEMORANDUM OPINION

Nolan Michael Shultz was convicted of the offense of driving while intoxicated. 

See TEX. PENAL CODE ANN. § 49.04 (West 2011). He was sentenced to 180 days in jail and 

a $4,000 fine was imposed. Sentence was suspended and Shultz was placed on 

community supervision for 18 months. Because there is no record which shows error, 

the trial court’s judgment is affirmed. 

In one issue, Shultz contends that the trial court erred in allowing the State during 

its argument at guilt-innocence to improperly comment on Shultz’s refusal to testily and 
Shultz v. State Page 2

to improperly shift the burden of proof to Shultz. Proper jury argument generally falls 

within one of four general areas: (1) summation of the evidence; (2) reasonable deduction 

from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law 

enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Improper jury 

argument will not constitute reversible error unless, in light of the record as a whole, the 

argument is extreme or manifestly improper, violates a mandatory statute, or injects into 

the trial proceeding new facts harmful to the accused. Wesbrook v. State, 29 S.W.3d 103, 

115 (Tex. Crim. App. 2000). In this case, however, we have no record to review which 

would allow us to determine either error or harm. 

The Clerk of this Court notified Shultz by letter dated February 2, 2016 that the 

reporter’s record had not been filed because Shultz had not paid or made arrangements 

to pay for the reporter’s fee for preparation of the record. The Clerk then directed Shultz 

to pay or make arrangements to pay the reporter’s fee within 21 days from the date of the 

letter or the appeal would be submitted on the clerk’s record alone. See TEX. R. APP. P. 

37.3(c).1 Twenty one days passed and Shultz did not comply with the Clerk’s February 

2, 2016 letter. By letter dated February 25, 2016, the Clerk notified Shultz that the 

reporter’s record had not been filed; and thus, the appeal would be submitted on the 

clerk’s record alone. When Shultz’s brief was ultimately filed in June of 2016, a copy of 

 

1 Shultz had a retained attorney at trial and on appeal. He was not determined to be indigent and was thus 

not entitled to proceed without the payment of costs. See TEX. R. APP. P. 37.3(c)(2)(B).
Shultz v. State Page 3

the reporter’s record of only the State’s argument was attached to his brief which 

allegedly supported the issue he raised in the brief. The Clerk notified Shultz by letter 

dated June 30, 2016 that no reporter’s record had been filed and that the Court could not 

rely on the appendix as the official reporter’s record. Shultz was then given the 

opportunity to address the issues the Court had in any manner he chose. Shultz did not 

reply.

We only have a clerk’s record in this appeal, and the clerk’s record does not show 

any error by the State in its argument at guilt/innocence. Further, we cannot consider the 

record attached as an appendix to Shultz’s brief. See Sabine Offshore Service, Inc. v. Port 

Arthur, 595 S.W.2d 840 (Tex. 1979); Hutchinson v. State, No. 10-13-00120-CR, 2014 Tex. 

App. LEXIS 4202, at *7-8 (App.—Waco 2014, pet. ref’d) (not designated for publication); 

Pierce v. State, No. 10-09-00320-CR, 2010 Tex. App. LEXIS 5323, *3-4 (Tex. App.—Waco 

July 7, 2010, no pet.) (not designated for publication). Accordingly, Shultz’s sole issue is 

overruled, and the trial court’s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed December 7, 2016

Do not publish 

[CR25]