David Scott Lindsey v. State ( 2015 )

Opinion issued September 24, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01008-CR
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DAVID SCOTT LINDSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1281488
MEMORANDUM OPINION
Appellant, David Scott Lindsey, was sentenced to 25 years’ imprisonment
after pleading guilty, without an agreed recommendation, to the felony offense of
intent to deliver methamphetamine (4 to 200 grams). See TEX. HEALTH & SAFETY
CODE §§ 481.102, 481.112(a). Appellant subsequently filed a notice of appeal.
After appellant’s retained counsel did not file a brief, we abated the appeal
and remanded the case to the trial court to determine whether appellant desired to
prosecute his appeal. See TEX. R. APP. P. 38.8(b)(2). At the abatement hearing,
appellant stated that he no longer desires to prosecute his appeal. The supplemental
record includes the trial court’s finding that appellant no longer desires to
prosecute his appeal. Based on the supplemental record, we ordered the appeal to
be considered without briefs. See TEX. R. APP. P. 38.8(b)(4) (providing that
appellate court may consider an appeal without briefs when trial court has found
that the appellant no longer desires to prosecute the appeal, as justice may require);
Ayala v. State, No. 01-13-00393-CR, 2015 WL 161788, at *1 (Tex. App.—
Houston [1st Dist.] Jan. 13, 2015, no pet.) (considering appeal without briefs when
trial court found that appellant no longer desired to prosecute appeal).
When we determine an appeal in a criminal case without the benefit of an
appellant’s brief, our review of the record is limited to fundamental errors. See Lott
v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994); see also Burton v. State,
267 S.W.3d 101, 103 (Tex. App.—Corpus Christi 2008, no pet.) (discussing
process of considering criminal appeal when defendant does not file brief).
Fundamental errors include the following: (1) errors recognized by the legislature
as fundamental; (2) the violation of rights that are waivable only; and (3) the denial
of absolute, systemic requirements. Burton, 267 S.W.3d at 103 (citing Saldano v.
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State, 70 S.W.3d 873, 887–88 (Tex. Crim. App. 2002)). The Texas Court of
Criminal Appeals has also identified the following “fundamental errors”: (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 penal
statute that does not comply with the Separation of Powers Section of the state
constitution; (7) jury charge errors resulting in egregious harm; (8) holding trials at
a location other than the county seat; (9) prosecution under an ex post facto law;
and (10) comments by a trial judge which taint the presumption of innocence.
Saldano, 70 S.W.3d at 888–89; Burton, 267 S.W.3d at 103.
Our examination of the trial court record reveals no fundamental error.
Accordingly, we affirm the trial court’s judgment.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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