Wynston Vonzell Day v. the State of Texas ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00562-CR
Wynston Vonzell Day, Appellant
v.
The State of Texas, Appellee
FROM COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY
NO. C-1-CR-20-207342, THE HONORABLE BRANDY MUELLER, JUDGE PRESIDING
MEMORANDUM OPINION
Wynston Vonzell Day was charged with and pleaded guilty to the offense of
misdemeanor assault causing bodily injury. See Tex. Penal Code § 22.01(a)-(b). The trial court
determined that Day was indigent, and an attorney was appointed to represent him. At a pretrial
hearing, Day elected to proceed pro se, but his appointed attorney and a later appointed attorney
served as standby counsel. See Faretta v. California, 422 U.S. 806, 819 (1975). Under the
terms of a plea-bargain agreement, Day agreed to plead no contest in exchange for the State’s
recommendation that he be sentenced to ninety days in county jail. The trial court accepted the
plea-agreement terms and sentenced him to the recommended ninety days’ confinement. See
Tex. Penal Code § 12.21. Following his conviction, the trial court certified that Day had the
right to appeal, and he filed a pro se notice of appeal. Day’s brief was originally due April 19,
2021. On May 20, 2021, the clerk’s office for this Court sent Day a letter informing him that his
brief was overdue and warning him that if he did not file a brief or motion for extension of time
by June 1, 2021, this appeal would be submitted on the record alone. To date, Day has not filed
an appellant’s brief or a motion for extension of time.
Generally, Rule of Appellate Procedure 38.8 requires an appellate court to order
the trial court to hold a hearing when an appellant’s counsel has not timely filed a brief so that
the trial court can determine whether the appellant desires to prosecute his appeal, whether the
appellant is indigent, or if appellant is not indigent, whether appellant’s retained counsel has
abandoned the appeal. See Tex. R. App. P. 38.8(b). However, Rule 38.8 also provides that, in
certain circumstances, “the appellate court may consider the appeal without briefs, as justice may
require.” See id. “[W]here an appellant chooses to appear pro se and has been warned of the
dangers of pro se representation on appeal, there is no need to remand for a . . . hearing.” Lott v.
State, 874 S.W.2d 687, 688 n.2 (Tex. Crim. App. 1994) (applying predecessor to Rule 38.8); see
Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus Christi 2008, no pet.) (explaining that
analysis from Lott 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 appellant
represented himself at trial and on appeal, 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 for the presence 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 trial 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
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of the Texas Constitution; (7) jury-charge errors resulting in egregious harm; (8) trials being
held in a location other than the county seat; (9) prosecution under an ex post facto law; and
(10) comments made by a trial judge that taint the presumption of innocence. Saldano v. State,
70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002).
In the interest of justice, we have reviewed the record in this case. Having found
no unassigned fundamental error, we affirm the trial court’s judgment of conviction. 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).
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Smith
Affirmed
Filed: September 1, 2021
Do Not Publish
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