Opinion issued September 24, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-01008-CR
                           ———————————
                    DAVID SCOTT LINDSEY, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 209th District Court
                           Harris County, Texas
                       Trial Court Case No. 1281488


                         MEMORANDUM OPINION

      Appellant, David Scott Lindsey, was sentenced to 25 years’ imprisonment

after pleading guilty, without an agreed recommendation, to the felony offense of

intent to deliver methamphetamine (4 to 200 grams). See TEX. HEALTH & SAFETY

CODE §§ 481.102, 481.112(a). Appellant subsequently filed a notice of appeal.
      After appellant’s retained counsel did not file a brief, we abated the appeal

and remanded the case to the trial court to determine whether appellant desired to

prosecute his appeal. See TEX. R. APP. P. 38.8(b)(2). At the abatement hearing,

appellant stated that he no longer desires to prosecute his appeal. The supplemental

record includes the trial court’s finding that appellant no longer desires to

prosecute his appeal. Based on the supplemental record, we ordered the appeal to

be considered without 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

that the appellant no longer desires to prosecute the appeal, as justice may require);

Ayala v. State, No. 01-13-00393-CR, 2015 WL 161788, at *1 (Tex. App.—

Houston [1st Dist.] Jan. 13, 2015, no pet.) (considering appeal without briefs when

trial court found that appellant no longer desired to prosecute appeal).

      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.


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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.

      Our examination of the trial court record reveals no fundamental error.

Accordingly, we affirm the trial court’s judgment.

                                   PER CURIAM

Panel consists of Justices Keyes, Massengale, and Lloyd.

Do not publish.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




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