Scott Edward O'Neill v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00333-CR

Scott Edward O’Neill, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW OF BURNET COUNTY
NO. M39724, THE HONORABLE CODY HENSON, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Scott Edward O’Neill guilty of misdemeanor assault by

causing bodily injury to a member of his family. See Tex. Penal Code § 22.01(a)(1). The jury

assessed appellant’s punishment at 365 days’ confinement in county jail, found that he had never

been convicted of a felony, and recommended that his sentence be suspended and that he be

placed on community supervision. See Tex. Code Crim. Proc. art. 42A.055 (governing

jury-recommended community supervision). The trial court sentenced appellant in accordance

with the jury’s recommendation, suspended his sentence, and placed him on community
supervision for a period of fifteen months. 1 Appellant, appearing pro se, filed a notice of appeal

from his conviction and sentence. 2

Appellant’s brief was originally due by October 28, 2024, but no brief or motion

for extension of time was filed. The Clerk of the Court sent written notice to appellant,

informing him that his brief was overdue and advising him that if the Court did not receive a

motion for extension of time or a brief accompanied by a motion for extension of time on or

before January 27, 2025, the cause would be submitted for consideration on the record alone. On

January 26th, appellant filed a motion for extension of time to file his brief. We granted his

motion and, in a second written notice, advised him that if his brief was not received by

March 28, 2025, the appeal would be considered on the record alone and that additional requests

for extension of time would be strongly disfavored. To date, no brief or further motion for

extension of time has been received.

Rule 38.8 of the Texas Rules of Appellate Procedure provides that, under certain

circumstances, an appellate court in a criminal case may consider an appeal without briefs, “as

justice may require.” Tex. R. App. P. 38.8(b)(4); see Tex. Code Crim Proc. art. 44.33(b)

(providing that appellant’s failure to file brief shall not authorize dismissal of appeal); Lott

v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994) (applying predecessor to Rule 38.8);

Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.)

(explaining that analysis from Lott also applies under Rule 38.8); see also Coleman v. State,

1
Although the judgment recites that appellant was placed on probation, the terms
“probation” and “community supervision” are used interchangeably under Texas law. See Shortt
v. State, 539 S.W.3d 321, 322 n.1 (Tex. Crim. App. 2018).
2
The trial court appointed counsel to represent appellant at trial but denied his
application for appointed appellate counsel.
2
774 S.W.2d 736, 738–39 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (affirming conviction

on record alone, noting that no appellant’s brief had been filed more than one year after trial, and

stating that “justice requires” that exercise of right of appeal be held within framework of rules

of appellate procedure).

In those circumstances, appellate courts review the record for the presence of

unassigned fundamental error. See Burton, 267 S.W.3d at 103. The Court of Criminal Appeals

has explained that the following types of errors are fundamental: (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 statute that violates the separation-of-powers provision of

the Texas Constitution; (7) jury-charge errors resulting in egregious harm; (8) trials being held in

a location other than the county seat; (9) prosecution under an ex post facto law; and

(10) comments made by a trial judge that taint the presumption of innocence. Saldano v. State,

70 S.W.3d 873, 887–89 (Tex. Crim. App. 2002).

Appellant has been given lengthy extensions of time to file an appellate brief but

has failed “to make any arrangements for filing a brief.” See Tex. R. App. P. 38.8(b)(4).

Therefore, we submitted the case without briefs and, having reviewed the record in this appeal,

find no unassigned fundamental error. 3 See id.; Lott, 874 S.W.2d at 688. We affirm the trial

court’s judgment of conviction.

3
No reporter’s record was filed in this appeal. Although appellant was given notice of
the record’s absence and a reasonable opportunity to cure, he failed to pay or make arrangements
to pay for preparation of the reporter’s record. See Tex. R. App. P. 37.3(c) (allowing appellate
court to “decide those issues or points that do not require a reporter’s record”).
3
__________________________________________
Maggie Ellis, Justice

Before Chief Justice Byrne, Justices Kelly and Ellis

Affirmed

Filed: August 22, 2025

Do Not Publish

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