Ansel Eugene Jeffries v. the State of Texas

AFFIRM; and Opinion Filed June 7, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00652-CR

ANSEL EUGENE JEFFRIES, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 10
Dallas County, Texas
Trial Court Cause No. M21-33261

MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Kennedy
Opinion by Justice Kennedy
Ansel Eugene Jeffries appeals his conviction for the misdemeanor offense of

assault, family violence. Appellant, proceeding pro se on appeal, failed to file an

appellant’s brief. We affirm the trial court’s judgment. Because all issues are settled

in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

On April 9, 2021, appellant was charged by information with the offense of

assault causing bodily injury, family violence. The offense was alleged to have

occurred on March 15, 2021, and to have involved a woman with whom appellant
had a dating relationship. The trial court found appellant was not indigent and, thus,

he was not eligible for the appointment of court appointed counsel. Appellant was

represented by retained counsel in the trial court.

Appellant entered a plea of not guilty. A jury returned a verdict of guilty on

May 17, 2023. The jury assessed punishment at confinement in the county jail for a

period of 0 days and a fine in the amount of $0.1 In addition, the jury recommended

that appellant be placed on community supervision. The record reflects that, on May

19, 2023, the trial court ruled the punishment verdict was void and rescheduled a

punishment hearing for June 1, 2023. The basis for the court’s ruling concerning the

punishment verdict is not stated in the record before us. On June 1, 2023, appellant

signed a Judicial Admonition of Defendant’s Rights and Plea Agreement. It appears

that the plea agreement was limited to punishment as appellant did not change his

plea of not guilty and the jury had already returned a verdict of guilty. That verdict

was not set aside. The judge certified that the agreement was a plea bargain, and

that appellant had the right to appeal and had not waived that right.2 The plea

agreement provided for a sentence of 3 days’ confinement in the Dallas County jail

1
The range of punishment for this offense is confinement in jail for a period not to exceed one year, a
fine not to exceed $4,000, or both. TEX. PENAL CODE § 12.21(2).
2
While the trial court indicated appellant entered into a plea bargain, in actuality this is not a plea
bargain case within the meaning of Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure because,
while the punishment did not exceed the punishment recommended by the prosecutor and agreed to by
appellant, appellant did not plead guilty or nolo contendere to the charged offense. See TEX. R. APP. P.
25.2(a)(2) (defining a “plea bargain case” as one in which the defendant pleads guilty or nolo contendere,
and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the
defendant.”).
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and a fine of $100, with credit for time served. On June 1, 2023, the trial court

signed a “Judgment on Plea of Not Guilty before the Jury [-] Punishment by the

Judge” indicating a jury verdict of guilty and assessing punishment at 3 days’

confinement in the Dallas County jail and a fine of $100, with credit for time served.

Appellant filed a timely notice of appeal.

Appellant proceeded pro se in this Court. The clerk’s record was filed on July

26, 2023, with supplemental records being filed on July 31, September 1, and

September 13. With respect to the court reporter’s record, on July 6, 2023, the court

reporter notified the Court that appellant had not paid, or made arrangements to pay,

for the record and is not appealing as indigent. On August 3, we directed appellant

to provide notice in ten days that he had requested preparation of the reporter’s

record. On August 16, appellant advised that payment arrangements were being

made with the court reporter. On September 11, having received no further updates

from appellant with respect to the court reporter’s record and not having received

the reporter’s record, we directed appellant to provide notice in ten days that he had

requested preparation of the reporter’s record and written verification that he had

paid or made arrangements to pay the court reporter’s fee. We cautioned appellant

that if we did not receive documentation within the stated time, the Court might order

the appeal submitted without the reporter’s record. On October 12, not having

received the reporter’s record, a written verification that appellant had paid for the

reporter’s record, or any response to our September 11 order we ordered this appeal

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submitted without the reporter’s record, and we ordered appellant to file his brief by

November 9. Appellant did not file a brief by November 9. On December 5, we

ordered appellant to file his brief and a motion for extension of time to file the brief

on or before December 20. We advised appellant that if he failed to file his brief by

December 20, the appeal might be submitted on the clerk’s record and without

appellant’s brief. Appellant failed to file a brief and a motion for extension of time

to file same by December 20. We notified appellant on March 27, 2024, that the

case would be submitted without oral argument on May 14. We submitted the appeal

without briefs on May 14. See TEX. R. APP. P. 38.8(b)(4).

DISCUSSION

The failure of an appellant to file an appellant’s brief in a criminal case does

not authorize the dismissal of a case. TEX. R. APP. P. 38.8(b)(1); see also TEX. CODE

CRIM. PROC. art. 44.33(b) (stating appellant’s failure to file his brief in the time

prescribed shall not authorize dismissal of appeal by court of appeals). Generally,

when an appellant has not filed a brief in a criminal case, Rule 38.8(b) requires the

appellate court to remand the case to the trial court to conduct a hearing and

“determine whether the appellant desires to prosecute his appeal, whether the

appellant is indigent, or, if not indigent, whether retained counsel has abandoned the

appeal, and to make appropriate findings and recommendations.” TEX. R. APP. P.

38.8(b)(2); see also Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus

Christi–Edinburg 2008, no pet.). But when an appellant has chosen to represent

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himself on appeal and has already been warned of the dangers of pro se

representation, there is no need to remand for such a hearing. Burton, 267 S.W.3d

at 103; see also Lott v. State, 874 S.W.2d 687, 688 n.2 (Tex. Crim. App. 1994).

Moreover, Rule 38.8(b)(4) states an “appellate court may consider [an] appeal

without briefs, as justice may require.” TEX. R. APP. P. 38.8(b)(4); see also

Scwartzkopf v. State, Nos. 05-21-00662-CR, 05-21-00663-CR, 2022 WL 3714518,

at *1 (Tex. App.—Dallas Aug. 29, 2022, no pet.) (mem. op., not designated for

publication) (submitting case without briefs and reviewing record for fundamental

error where pro se appellant failed to file brief). In doing so, we review the record

for fundamental error. Cooper v. State, No. 05-21-01002-CR, 2023 WL 6475647,

at *2 (Tex. App.—Dallas Oct. 5, 2023, pet. ref’d) (mem. op., not designated for

publication); Scwartzkopf, 2022 WL 3714518, at *1; Seay v. State, Nos. 05-18-

00362-CR to 05-18-00364-CR, 2019 WL 3886652, at *1–2 (Tex. App.—Dallas

Aug. 19, 2019, no pet.) (mem. op., not designated for publication); Cooper v. State,

No. 05-14-00089-CR, 2015 WL 150081, at *1 (Tex. App.—Dallas Jan. 8, 2015, pet.

ref’d) (mem. op., not designated for publication).

Fundamental errors include: (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

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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. See Saldano v. State, 70 S.W.3d 873,

888–89 (Tex. Crim. App. 2002); Burton, 267 S.W.3d at 103.

CONCLUSION

Without a brief, no issues are before us. In the interest of justice, we have

reviewed the clerk’s record in this appeal for fundamental error and have found none.

See Burton, 267 S.W.3d at 103; see also Scwartzkopf, 2022 WL 3714518, at *1. We,

therefore, affirm the trial court’s judgment.

/Nancy Kennedy/
NANCY KENNEDY
JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47

230652F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ANSEL EUGENE JEFFRIES, On Appeal from the County Criminal
Appellant Court No. 10, Dallas County, Texas
Trial Court Cause No. M21-33261.
No. 05-23-00652-CR V. Opinion delivered by Justice
Kennedy. Justices Molberg and
THE STATE OF TEXAS, Appellee Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 7th day of June, 2024.

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