Eric Vicente Rostro v. State

Opinion issued November 13, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00556-CR
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ERIC VICENTE ROSTRO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case No. 57,844
MEMORANDUM OPINION
Appellant Eric Vicente Rostro pleaded guilty to the offense of felony driving
while intoxicated.1 Pursuant to the State’s punishment recommendation, the trial
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See TEX. PENAL CODE ANN. §§ 49.04, .09(b)(2) (Vernon Supp. 2014)
court sentenced Appellant to three years in prison, suspended the sentence, placed
him on community supervision for three years, and assessed a $500 fine.
Two months later, the State filed a motion to revoke Appellant’s community
supervision. Appellant pleaded true to six of the State’s allegations asserted in the
motion to revoke, thus admitting that he had violated the terms of his community
supervision by consuming alcohol, committing a traffic offense, and operating a
motor vehicle after his license had been suspended. Following the preparation of a
presentence investigation report, the trial court conducted a sentencing hearing at
which it revoked Appellant’s community supervision and sentenced him to three
years in prison.
During the trial court proceedings, Appellant had been represented by
retained counsel. Following the trial court’s rendition of judgment, Appellant filed
a pro se notice of appeal. Appellant was appointed appellate counsel. After
appointed counsel did not file a brief, we abated the appeal and remanded the case
to the trial court for a determination of whether Appellant desired to prosecute his
appeal. See TEX. R. APP. P. 38.8(b)(2).
The trial court conducted a hearing at which Appellant’s appointed counsel
and an attorney representing the State appeared. The record shows that,
Appellant’s appointed counsel presented a motion to dismiss the appeal at the
hearing. She also filed the motion to dismiss in the trial court.
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During the hearing, appointed counsel stated the efforts that she had made to
contact Appellant through the prison system. She informed the trial court that she
had learned that Appellant had been deported. Counsel stated that, although she
had made further efforts, she had been unable to obtain a forwarding address or
other contact information for Appellant.
In addition, the State’s attorney informed the trial court that the district
attorney’s investigator had learned from federal immigration authorities that
Appellant had been deported. The trial court admitted an exhibit offered by the
State that included correspondence from the investigator and other documents
verifying that Appellant had been deported. The trial court made a finding on the
record that Appellant did not wish to prosecute this appeal.
After a transcript of the hearing and a supplemental clerk’s record was filed
with the Clerk of this Court, we reinstated the appeal. In our reinstatement order,
we acknowledged that Appellant’s counsel had filed a motion to dismiss the
appeal; however, we pointed out that the motion did not comply with Rule of
Appellate Procedure 42.2(a), which requires that the appellant also sign a motion
to dismiss in a criminal appeal. See TEX. R. APP. P. 42.2(a).
Based on the supplemental record, we ordered the appeal to be considered
without the benefit of 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
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that the appellant no longer desires to prosecute the appeal, as justice may require).
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.
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.
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Our examination of the trial court record reveals no fundamental error.
Accordingly, we affirm the trial court’s judgment.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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