COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00150-CR
JUSTIN LOUIS NICHOLS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY
TRIAL COURT NO. 1405611
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MEMORANDUM OPINION1
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In March 2015, Appellant Justin Louis 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.
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See Tex. R. App. P. 47.4.
Nichols pleaded “not guilty” to the charge. A jury convicted him of the
offense, and on April 5, 2016, the trial court assessed his punishment at 120
days’ confinement and a $600 fine and then suspended the imposition of the
sentence and placed Nichols on 20 months of community supervision. See id.
§ 12.22 (West 2011) (stating that an individual adjudged guilty of a Class B
misdemeanor shall be punished by a fine not to exceed $2,000, confinement in
jail for a term not to exceed 180 days, or both). Nichols filed a notice of appeal,
and the trial court set his appeal bond.
We abated the appeal on September 9, 2016, for the trial court to
determine whether Nichols desired to prosecute the appeal and whether Nichols
was indigent, to admonish Nichols about the dangers and disadvantages of self-
representation, and to take any other measures 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 Nichols 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 April 17, 2017, over a year after the trial court assessed
Nichols’s sentence, we informed Nichols that unless he filed a motion reasonably
explaining the failure to file a brief and the need for an extension by April 27,
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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 appeal for a second time, for the trial
court to determine whether Nichols still wanted to appeal; to determine whether
Nichols was indigent and whether 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 appeal. The trial court warned Nichols of
the dangers of self-representation, and Nichols indicated that he might consult an
attorney about the appeal.
After the supplemental reporter’s record of the second abatement hearing
was filed, we informed Nichols that his appellate brief would be due July 10,
2017. On July 26, 2017, we again informed Nichols that because his brief had
not been filed, we would consider 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).
3
When an appellant fails to file a brief, 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 Worth Jan. 29, 2015, no pet.) (mem. op. on
reh’g, not designated for publication). 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 appeals has enumerated 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
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 and 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 violation. The jury charge does
not reflect any errors that might give rise to egregious harm, the case was tried in
Fort Worth, the county seat of Tarrant County, and the trial judge made no
comments that might taint the presumption of innocence.
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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
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