Raul Salazar v. State

• Court: Court of Appeals of Texas
• Decided: March 15, 2012
• Docket: 13-10-00327-CR
• Status: Published

Opinion

NUMBER 13-10-00327-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RAUL SALAZAR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 404th District Court of Cameron County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez A jury found appellant Raul Salazar guilty of possession of marihuana, a

third-degree felony. See TEX. HEALTH & SAFETY CODE ANN. ' 481.121(a), (b)(4) (West

2010). After assessing punishment at five years in the Texas Department of Criminal Justice—Institutional Division, the trial court suspended the sentence and placed Salazar

on community supervision for five years. We affirm.

Salazar filed his notice of appeal on May 14, 2010. Appellant=s brief was

originally due to be filed on March 2, 2011. On June 16, 2011, this Court abated the case

and remanded it to the trial court to determine whether Salazar desired to prosecute this

appeal; why Salazar's counsel had failed to file a brief and whether counsel had

effectively abandoned the appeal; whether Salazar had been denied effective assistance

of counsel; whether Salazar's counsel should be removed; and whether Salazar was

indigent and entitled to court-appointed counsel. See TEX. R. APP. P. 38.8(b)(2). The

trial court held a hearing on August 11, 2011 and found that Salazar wished to pursue his

appeal and was not indigent, and granted Salazar’s counsel’s motion to withdraw. The

trial court directed Salazar to hire a new lawyer and file an appellate brief.

On September 29, 2011, the Clerk of this Court directed Salazar to notify us if he

had obtained counsel. On December 2, 2011, having received no response, we ordered

Salazar to file his appellate brief by January 6, 2012. This Court also advised Salazar

that if he failed to file his brief, we would decide this appeal upon the record before us.

See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994); Coleman v. State, 774

S.W.2d 736, 738-39 (Tex. App.—Houston [14th Dist.] 1989, no pet.). Salazar has not

filed a brief or any other response. We, therefore, have submitted Salazar's case without

the benefit of briefs and, in the interest of justice, have reviewed the record. See TEX. R.

APP. P. 38.8(b)(4).

2 When an appellant fails to file a brief, an appellate court's review of the record is

limited to the following categories of fundamental errors: (1) errors recognized by the

legislature as fundamental; (2) the violation of rights, which are waivable only; and (3) the

denial of absolute, systemic requirements. Burton v. State, 267 S.W.3d 101, 103 (Tex.

App.—Corpus Christi 2008, no pet.) (citing Saldano v. State, 70 S.W.3d 873, 887-88

(Tex. Crim. App. 2002); Lott, 874 S.W.2d at 688)). 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 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 record reveals no fundamental error. See Burton, 267

S.W.3d at 103. Accordingly, we affirm the trial court's judgment.

NELDA V. RODRIGUEZ Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 15th day of March, 2012.