## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00150-CR

JUSTIN LOUIS NICHOLS APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY TRIAL COURT NO. 1405611

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### MEMORANDUM OPINION 1

---------- In March 2015, Appellant Justin Lo uis Nichols was charged with Class B misdemeanor driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a)–(b) (West Supp. 2016). He was released on bond while awaiting trial, and he retained counsel.

1 See Tex. R. App. P. 47.4.2 Nichols pleaded “not guilty” to the ch arge. A jury convicted him of the offense, and on April 5, 2016, the tria l court assessed his punishment at 120 days’ confinement and a $6 00 fine and then suspen ded the imposition of the sentence and placed Ni chols on 20 months of community supervision. See id. § 12.22 (West 2011) (stating that an in dividual adjudged gu ilty of a Class B misdemeanor shall be punished by a fine not to exceed $2,00 0, confinement in jail for a term not to exceed 180 days, or both). Nichols filed a notice of appeal, and the trial court se t his appeal bond. We abated the appeal on September 9, 2016, for the trial court to determine whether Nichols desired to pros ecute the appeal and whether Nichols was indigent, to admonish Nichols about the dangers a nd disadvantages of selfrepresentation, and to take any other me asures it deemed necessary to ensure that Nichols did not forfeit his right to appeal. At the September 16, 2016 abatement hearing, the trial court determined that Ni chols was not indigent, and it recommended granting Nichols’s retained counsel permission to withdraw. The trial court informed Nichols that he would need to pay the court reporter for the reporter’s record. In October 2016, we granted retained counsel’s motion to withdraw. On January 24, 2017, we informed Nichols that his brief was due on February 23, 2017. On Apr il 17, 2017, over a year afte r the trial court assessed Nichols’s sentence, we info rmed Nichols that unless he filed a motion reasonably explaining the failure to file a brief an d the need for an extension by April 27,3 2017, the court could consider the appeal without briefs. See Tex. R. App. P. 10.5(b), 38.8(b)(2). On May 15, 2017, we abated the app eal for a second time, for the trial court to determine whether Ni chols still wanted to appeal; to determine whether Nichols was indigent and w hether counsel should be appointed for him; to admonish Nichols about the dangers and disadvantages of self-representation if he desired to proceed pro se and determine whether his decision was competently and intelligently made; and to take any other measures necessary to insure that Nichols did not forfeit his right to appeal. At the May 24, 2017 abatement hearing, the trial court once more found that Nichols was not indigent and that he wanted to proceed with the ap peal. The trial cour t warned Nichols of the dangers of self-representation, and Ni chols indicated that he might consult an attorney about the appeal. After the supplemental reporter’s reco rd of the second abatement hearing was filed, we informed Nichols that hi s appellate brief would be due July 10, 2017. On July 26, 2017, we again info rmed Nichols that because his brief had not been filed, we would co nsider the appeal without briefs unless he filed a motion reasonably explaining his failure to file the brief and the need for an extension by August 7, 2017. See Tex. R. App. P. 10.5(b), 38.8(b)(2). Despite ample opportunity to do so, no appellant’s brief has been filed. Accordingly, we will consider the appeal without briefs. See Tex. R. App. P. 38.8(b)(4).4 When an appellant fails to file a brie f, no issues or points are properly before the court, see Tex. R. App. P. 38.1(f), and appellate review is limited to unassigned fundamental errors. 2 See Baker v. State , No. 02-14-00157-CR, 2015 WL 392640, at *2 (Tex. App.—Fort Wort h Jan. 29, 2015, no pet.) (mem. op. on reh’g, not designated for pu blication). We have reviewed the record in the interest of justice, see Tex. R. App. P. 38.8(b)(4 ), and found no unassigned fundamental error. See Lott v. State , 874 S.W.2d 687, 688 (Tex. Crim. App.

2 The court of criminal ap peals has enumerated t he following fundamental errors: (1) denial of the right to counsel; (2) denial of the right to a jury trial; (3) denial of ten days’ prep aration before trial for appo inted counsel; (4) absence of jurisdiction over the defendant; (5) absence of subject matter jurisdiction; (6) prosecution under a penal statute that does not comply with the Separation of Powers section of the state constitution ; (7) jury-charge e rrors resulting in egregious harm; (8) holding trials at a location other than the county seat; (9) prosecution under an ex post facto la w; and (10) comments by a trial judge that taint the presumption of innocence. Saldano v. State , 70 S.W.3d 873, 887– 89 (Tex. Crim. App. 2002). Here, Nichols retained trial counsel an d received a jury trial, the county criminal court had jurisdiction over him, see Tex. Code Crim. Proc. Ann. arts. 4.01(8), 4.07 (West 2015), and nothing in the pertinent penal code provisions suggests a separation of powers or ex post facto violati on. The jury charge does not reflect any errors that might give rise to egregious harm, the case was tried in Fort Worth, the county se at of Tarrant County, and the trial judge made no comments that might taint the presumption of innocence.5 1994). Therefore, we affirm the trial court’s judgment. /s/ Bonnie Sudderth BONNIE SUDDERTH CHIEF JUSTICE PANEL: SUDDERTH, C.J .; KERR and PITTMAN, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: November 2, 2017