Eric Vicente Rostro v. State

Opinion

Opinion issued November 13, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00556-CR ——————————— 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

1 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.

2 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

3 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.

4 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).