Timothy Dean McAlister v. State

• Court: Court of Appeals of Texas
• Decided: January 10, 2019
• Docket: 02-18-00121-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-18-00121-CR ___________________________

TIMOTHY DEAN MCALISTER, Appellant

V.

THE STATE OF TEXAS

On Appeal from County Criminal Court No. 2 Tarrant County, Texas Trial Court No. 1488130

Before Sudderth, C.J.; Pittman and Birdwell, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Appellant Timothy Dean McAlister appeals his conviction and his 180-day

suspended sentence for driving while intoxicated while having an open container of

alcohol.1 After McAlister filed his notice of appeal with assistance of retained counsel,

his counsel withdrew. Although McAlister requested appointed counsel, the trial court

found that he was not indigent and denied that request. McAlister proceeded pro se.

We received a clerk’s record, but we did not receive a reporter’s record because

McAlister did not pay for it.

On June 29, 2018, we sent a letter to McAlister to inform him that his brief

would be due on August 13, 2018. McAlister did not file a brief. On September 11,

2018, we issued an order stating that McAlister had not filed his brief and informing

him that we could consider his appeal without briefs unless before September 21,

2018, he filed a motion reasonably explaining his failure to file a brief. McAlister never

filed such a motion.

The trial court has held a hearing in which the court determined that McAlister

desires to prosecute his appeal and that he is not indigent. See Tex. R. App. P.

38.8(b)(2), (3). McAlister has not made necessary arrangements for filing a brief. See

Tex. R. App. P. 38.8(b)(4). Accordingly, we will consider this appeal without briefs.

See id.

See Tex. Penal Code Ann. § 49.04(a), (c) (West Supp. 2018). The trial court 1

suspended the imposition of the sentence and placed McAlister on community supervision.

2 We have reviewed the clerk’s record and have not discerned any unassigned

fundamental error. We therefore affirm the trial court’s judgment. See id.; Lott v. State,

874 S.W.2d 687, 688 (Tex. Crim. App. 1994); Nichols v. State, No. 02-16-00150-CR,

2017 WL 4974774, at *2 (Tex. App.—Fort Worth Nov. 2, 2017, no pet.) (mem. op.,

not designated for publication).

/s/ Wade Birdwell

Wade Birdwell Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: January 10, 2019