                           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.




      1
          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).


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      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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