Opinion issued April 20, 202 3

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 21
- 00 425
- CR NO. 0 1
- 21
- 00430
- CR

——————————— CHRIST OPHER MICHAEL PELLE TIER , Appella n t V. T HE STA T E O F TEXAS , Appe ll e e
On Appeal from the 1 0t h Distri ct Court Galveston County, Texas Trial Court Ca se No s . 20 CR1225 & 21CR1166

MEMORANDUM OPINION A jury found appellant, Christopher Michael Pelletier , guilty of two separate felony of fense s of assault of a family member

. 1 A fter finding t rue the alleg ation s

1 Se e T EX
. P E N AL C ODE A NN
. § 22.01(a)( 1 ) , (b)(2) (A), (b )(2)(B) ; see also T EX
. F AM
. C OD E A NN
. § 71.00 21(b)

.2

in two enhanc ement paragraph s that appellant had twice been previously convicted of felony offense s , t he jury assessed his punis h m ent at confinement for thirty ye ars for each offense, to r

un concurrently

. Appellant, proceeding pro se, has f ailed to file an appellant ’ s brief.
W e affirm. Backg round Appellant timely filed notice s of appeal f rom the trial court ’ s July 2 , 2021 judgments of conviction. There after, appellant ’ s previously

- appointed appellate counsel fil ed motion s to w ithdraw, a l ong with brief s stating that the record in each appeal presented no reversible error and the appea ls were without merit and were
fr iv olous. 2 See Anders v. Cal ifornia , 386 U.S. 738 (1967). On May 23, 2022, i n response to his appoi nted appellate counse l ’ s A nders bri ef s , a ppellant notified th e Court that he wa nted to “ release [ e] ” his appointed appellate counsel and represent himself pro se on appeal, stating that he “ want[ed] no attorney representation whatsoever. ” This Court const rued appellant ’ s response as a “ moti on to proce ed
pro se ” in each appeal. And on June 2, 2022, 3 the Court abated appellant ’ s appeals and remanded the appeals to th e trial court to cond uct a hearing on appellant ’ s

2 Appellant ’ s previously

- appointed appellate counsel filed his Anders briefs on December 17, 2021 and his motions to withdraw on May 10, 2022. 3 On June 2, 2 022, th e Co urt also ordered th at the trial co urt clerk provide a copy of the appellate rec ord to appellan t. On June 28, 2022, a supplemental clerk ’ s record was filed in this Court indicating that the appellate r ecord had been de livered to appellant on Jun e 2 2 , 2022.3

“ motion to proceed pro se. ” The trial cou rt was directed to determ i ne whether appel lant desired to proceed pro se on appeal ; whether appellant was u nequivocally and clearly asserting his right to represent himself ; whether app ellant understood the dangers of proceeding pro se on appeal ; whether a ppellant underst ood that

r epresentin g hims elf pro se on appeal may not be w ise and may ultimately be to his own detriment ; whether appellant understood that he was required to comply wi th all procedural and briefing rules ; whether appellant u nderstood that h e w ould n o t be afforded special tr eatmen t du e to a lack of a formal legal education ; whether appellant understood that he was entitled to effective assistance of appellate counsel and whether he was for going that right ; and whether appella nt was knowi ngly, intelli g ently, and voluntarily c hoosin g to represent himself pro se on appeal. If the trial court determined that appellant understood the dangers of proceeding pro se on appeal an d was competent to make that cho ice, the trial court

was directed to discharge app e llant ’ s previously

- appoi nted a p pellate counsel and advi se appellant that his appellant ’ s brief s w ere due within thirty days of the date of the trial court ’ s hearing. The trial court conducted the required hearing on June 15, 2022. At the hearing, a fter det e rmining that appellant “ unde r st [ ood ] what [he was] doing and [was] capa ble of proceeding ” pro se on appeal, the trial court discharged4

appellant ’ s previousl y - appointed appel late counsel . T he trial court also made the following fi ndings of fact : 1. Appellant does not want appo inted coun s el to continue to represent him.
2. Appellant wishes to proceed pro se.
3. Appellan t clearly and unequivocal ly asserted his r ight to represent himse lf.
4. App ellant understands the dangers of proceeding pro se in [h is] appeal[s]. 5. A p pellant understands proc eedi n g pro se may not be w ise and may be to his own detriment

. 6. Appellant understands he must comply with procedural and briefing rules

. 7. Appellant u nderstands he w ill not be accorded special treatment due to a lack of formal legal education

. 8. Appellant un ders t ands he is entitled to the effective assistance of appel late counsel and is for going th is right

. 9. A ppellant ’ s decision to proceed pro se was mad e knowingly , intelligently, and voluntarily. On July 7, 2022, this Court reinstat e d appellant ’ s appeal s , s truc k the Anders briefs filed by appellant ’ s prev iously

- appointed appellate counsel, and ordered appellant, who was no w proceeding pro se, to file hi s appellant ’ s brief in each appeal by August 8, 2022.5

On August 3, 2022, appellant filed a motion f or extension of time to file his appellant ’ s brief s , which the Court granted in part, ordering that appellant file his appellant ’ s brief s by October 7, 2022. Appellant did n ot file an appellant ’ s brief in either appeal. On October 18, 2022, th e Cou rt notified appella n t tha t his a ppellant ’ s brief s had not been timely filed and he was required to file motion s for an extension for time along with his appellant’s brief s or motio n s for extension of time to file his appellant’s brief

s within ten days of the C ourt’s n otice

. On October 25 , 20 2 2, appellant filed a motion for ext ension of time to file his appellant ’ s brief in each appeal , both of which the Court granted, ordering that appellant file his appel lant ’ s brief s by November 15, 2022. Appellant did not file an appellan t ’ s bri ef in either appeal.
On Ja nuar y 10, 2023, the Court no tified appellant that hi s appellant ’ s brief s

w ere due by February 9, 2023 , and that if an appellant ’ s brief s w ere not filed, his appeals w ould be submitted without briefs. Appellant did not file an app ellant ’ s brief in either appeal.6

O n February 16 , 2023, the Court notifie d appellant that it would consider appellant ’ s appeals without briefs , and it would review the record for f unda mental

error. 4
Fundamental Error Texas Rule of Appellate Procedure 38.8(b )(1) states that the failure of an appellant to file an appellant ’ s brief in a criminal case does not authorize the dismissal of a case. T EX
. R. A PP
. P. 38.8(b)(1); see also T EX
. C OD E C RIM
. P ROC
. A NN
. art. 44.33(b) (stating appellant’s failure to f ile his brief in the time prescribed shal l not authorize dismissal of appeal by cou rt of appeals). Thus, ge n erally , w hen an appellant has not filed a brief in a criminal case, Texas Rule of Appellate Procedure 38. 8(b) require s the appellate court to reman d the c ase to the trial court to conduct a hearing and “ determine whether the ap pella nt desir es to prosec u te his appeal, whe ther the appellant is indigent, or, if not indigent, whether r e tai ned

4 See Lott v. Sta te , 87 4 S.W.2d 687, 688 (Tex. Crim. App. 1994); Burton v. State , 267 S. W.3d 101, 103 (Tex. App

. — Corpus Christi

– Edinburg 2008, no pet.) (when appellant representing himself fails to file appellant’s brief and has been advis ed of dange rs of proceeding pro se , a ppellate cou rt may consider appeal without briefs and review record for fundamental error); see also Seay v. State , Nos. 05

- 18

- 00362

- CR to 05

- 18

- 00364

- CR, 2019 WL 3886652, at *1

– 2 (Tex. App.

— Dallas Aug. 19, 2019, no pet .) (mem. op ., not designated for p ub l ication) (su bmitting case without briefs and reviewing record for fu ndamental error where a ppellant, who was initially represented by appointed appellate counsel, failed to file appellant’s brief after filing motion to proceed pro se and after trial cou rt had held hea ring and found appellant wanted to represent himself, ha d made waiver of counse l competently, voluntarily, knowingly, and intelligently, had been admonished of dangers and disadvantages of self

- representatio n, and was capable of representing h i mself in man ner that would not harm interests of himself and State).7

counsel has abandoned the appeal, and to make approp riate find ings an d recommendations

. ” T EX
. R. A PP
. P. 38.8(b)(2) ; see also Burton v. State , 267 S.W.3d 101, 103 (Te x . App.

— Corp us Christi

– Edinburg 2008, no pet.). But when an appellant has chosen to represent himself on appeal and has already been

wa rned of the dan gers of pro se representation on a ppeal, there is no need to remand for such a hearing. Bur ton , 2 67 S.W.3d at 103; see als o Lott v. State , 874 S.W.2d 687, 688 n.2 (Tex. Crim. A pp. 1994)

. Notably, T exas Rule of Appellate Procedure 38.8(b)(4) states that an

“ appellate cou rt may consider [an] appeal withou t briefs, as justice may require. ” 5
T EX
. R A PP
. P. 38.8(b )(4) ; see also S c wartzkopf v. State , No s . 05

- 21

- 00662

- CR , 05

- 21

- 00663

- CR , 2022 W L 3714518, at *1 (Tex. App.

— Dallas Aug. 29, 2022, no pet. ) (mem. op., not d e signated for publication ) ( “ When a pro se appellant does not file a brief i n a criminal cas e, rule 38.8(b) states th a t the appellate court may consider the appeal without briefs, as justice may requ ires. ” (internal qu otations omitted) ) ; Seay v. Stat e , Nos. 05

- 18

- 0 0362

- CR to 05

- 18

- 00364

- CR, 2019 WL 3886652, at *1

– 2 (Tex. App.

— Dal las Aug. 19, 2019, no pet.) (mem. op., not design ated for publication) (su b mitting case without briefs and reviewing record for fundamental error whe re appellant, who was init ially represent ed by appointed

5 “[A]n appellate court ’ s inherent power to dismiss a case is reserved for those situations in which a party has engaged in serious misconduct suc h a s bad

- faith abuse of the judicial pr o cess.” Burt on , 267 S.W.3d at 103

.8

appellate counsel, failed to file ap pellant’s brie f after filing motion to proceed pro se and after trial court had held hea r ing and found appellant wanted to represent himself, had made waiver of co unsel competently, volunta rily, knowingly , and intelligently, had been admonished of dangers and disadvanta ges of self

- representation, and was capable of re presenting himself in man n er that would not harm interests of himself and State) ; Washington v. Stat e , No. 01

- 13

- 0 1038

- CR , 201 5 WL 7300 511, a t *2 (Tex. App.

— H ouston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op. , not designated for publication ) ( “ When an ap pellant fails to file a b r ief, we may submit the case without briefs and review the entire record, i n the interes t of justice, to determine i f the record reveals fundamental

error . ” ). When an appella nt in a criminal case fails to file a brief, our review o f the record is limited t o fundamental error

. See Lott , 874 S.W.2d at 688; Burton , 267 S.W.3d at 1 03. Fundamental error incl ude s : (1) denia l of the right to counsel; (2) denial of the right to a jury tria l; (3) denial of ten days ’ preparation before tri al for appointed counsel; (4) absence of jurisdiction over the defendant; (5) absence of subject

- mat ter jur isdiction; (6) prose cution under a penal statute that does not comply with the s eparation of p owers s ection of the state constitution; (7) jury charg e errors resulting in egr e gious harm; (8) holding trials at a location other than the county seat; ( 9) pros ecution under an ex post facto law; and (10) comments by9

a trial court which taint the presumption o f innocence. See Saldano v. State , 70 S.W.3d 873, 8 8 8

– 89 (Tex. Crim. App. 200 2 ) ; see also Burton , 267 S.W.3d at 103. Here, o u r review of the record in each appeal does not re veal any f undam ental

error . Conclusion W e af firm the judgmen t s of th e trial c ourt.

Julie Countiss Justice Panel consists of Justi ces Landau, Countiss , and Guerra.
Do not p ub lish. T EX
. R. A PP
. P. 47.2(b)

.