Richard C. Renfro v. State

• Court: Court of Appeals of Texas
• Decided: September 29, 2011
• Docket: 03-10-00011-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00011-CR

Richard C. Renfro, Appellant

v.

The State of Texas, Appellee

FROM COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY NO. 09-02077-1, HONORABLE SUZANNE BROOKS, JUDGE PRESIDING

MEMORANDUM OPINION

Richard C. Renfro was ticketed for the offense of failing to wear his seatbelt

while riding in a passenger vehicle. See Tex. Transp. Code Ann. § 545.413 (West 2011). Renfro

challenged the charge in a municipal court jury trial, where the jury found him guilty and assessed

as punishment a $35 fine. Renfro then appealed the verdict to the county court at law, where a

second jury convicted him on these same charges and again assessed a $35 fine as punishment. In

addition, the county court assessed $228 in court costs. Renfro then filed a notice of appeal with

this Court on December 21, 2009. Renfro has failed to file his appellate brief in this Court despite

being granted almost seven months of extensions of time, the last of which carried a warning that no further extensions would be granted.1 Finding no fundamental error apparent from the records

presented, we will affirm the judgment.

When an appellant has not filed a brief in a criminal case, we usually remand the

case to the trial court to conduct a hearing and to “make appropriate findings and recommendations.”

See Tex. R. App. P. 38.8(b)(2). At such a hearing, the trial court determines whether the appellant

is indigent and whether he wishes to pursue the appeal, and, if appellant is represented by retained

counsel, the trial court must determine whether retained counsel has abandoned the appeal. See id.

Tex. R. App. P. 38.8(b)(2). The latter determination is obviously irrelevant when, as here, the

appellant is representing himself.

The circumstances of this case render the remand described in Rule 38.8 unnecessary.

The clerk’s record contains an acknowledgment signed by the defendant that the county court at law

advised him of his right to be represented by counsel and of the “dangers and disadvantages of self-

representation.” Renfro proceeded to represent himself at the trial court level as he does here.

Renfro’s affidavit of indigence has not been challenged, and his failure to file a brief without

explanation despite four extensions of time and a warning that no more extensions were permitted

demonstrates his abandonment of this appeal. Because Renfro has been warned of the dangers of

1 Renfro’s brief in this Court was originally due December 17, 2010. His motions for extension of time to file his brief were granted, resetting the due date to January 31, 2011, then March 31, 2011, then May 31, 2011, and finally to July 15, 2011. The fourth extension was accompanied by notice that no further extensions of time would be granted. Renfro has not filed a brief.

2 pro se representation,2 there is no need to remand for a rule 38.8(b) hearing because the purposes of

such a hearing have been satisfied by the circumstances of this case. See Lott v. State, 874 S.W.2d

687, 688 n.2 (Tex. Crim. App. 1994); Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus

Christi 2008, no pet.). We submit this case without the benefit of briefs and, in the interest of

justice, review the record for fundamental errors. See Burton, 267 S.W.3d at 103.

Fundamental errors include: (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. Id. (citing Saldano v. State, 70 S.W.3d 873, 887-88 (Tex. Crim. App. 2002)). 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. Id. at 888-89.

Our examination of the record does not reveal any fundamental error. The clerk’s

record, which contains filings from both the municipal court and the county court at law proceedings,

reveals that Renfro challenged many aspects of the trial process including jurisdiction, the existence

2 Although the only admonishment regarding the dangers of self-representation occurred at the outset of his appeal to the county court at law, we conclude that the county court at law’s admonition regarding the “dangers and disadvantages of self-representation” was not trial-court specific. It sufficed to alert Renfro to those dangers and disadvantages through his appeal to this Court.

3 of probable cause for the traffic stop, the evidentiary basis for the indictment, the applicability of

the safety belt statute, the circumstances of the presentation of a plea bargain, and the impartiality

of the trial judge. The reporter’s record of the county court at law trial shows that the arresting

officer was the only witness. He testified that he saw Renfro driving a vehicle on a public street

while not wearing a seat belt even though the vehicle was equipped with seat belts. Our review of

the clerk’s and reporter’s records to evaluate Renfro’s claims and other possible errors reveals no

fundamental error.

We affirm the trial court’s judgment.

Jeff Rose, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: September 29, 2011

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