Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00526-CR Anthony S. JACKSON, Appellant v. The STATE of Texas, Appellee From the County Court, Sutton County, Texas Trial Court No. 24-218-CCCR-00120 Honorable Joseph E. Harris, Judge Presiding Opinion by: Lori Masey Brissette, Justice Sitting: Lori I. Valenzuela, Justice Lori Massey Brissette, Justice Velia J. Meza, Justice Delivered and Filed: October 7, 2026 REVERSED AND REMANDED Appellant, Anthony Shannon Jackson, appeals from a judgment adjudicating him guilty of the misdemeanor offense of interference with public duties. Jackson, proceeding pro se, failed to file an appellant’s brief. Nevertheless, because the record reveals fundamental error, we reverse and remand. 04-25-00526-CR BACKGROUND Texas Department of Public Safety (“DPS”) Trooper Alejandro Galante was the only witness who testified at the bench trial held in this matter. According to Trooper Galante, on January 17, 2024, he conducted a traffic stop on a vehicle travelling at 81 miles per hour in a 65- mile-per-hour speed zone. Trooper Galante eventually identified the driver as Anthony Shannon Jackson and the passenger in the vehicle as Athena Jackson. Trooper Galante informed Jackson that he would be issuing him a warning for speeding and requested, for officer safety, that Jackson step out of the vehicle. Jackson refused, and after multiple requests, Trooper Galante attempted to physically remove Jackson from the vehicle before calling for backup. With the assistance of a DPS supervisor who arrived on the scene, Jackson was eventually persuaded to exit the vehicle. Jackson was placed under arrest for interfering with public duties. Jackson was subsequently charged by information with the offense of interference with public duties, a class B misdemeanor. See TEX. PENAL CODE. ANN. § 38.15. Before trial, Jackson signed a “Waiver of Right to Counsel and Request to Discuss the Case with County Attorney.” On July 17, 2025, Jackson signed a jury trial waiver and proceeded pro se to a bench trial. The trial court found Jackson guilty as charged in the information and assessed punishment at sixty days confinement and a $500 fine. The sentence was suspended, and Jackson was placed on a six-month probation period. He timely appealed. The appellant’s brief was originally due on October 15, 2025. See TEX. R. APP. P. 4.1(a); 38.6(a). No brief was filed by that date, and on October 31, 2025, this court notified Jackson of the deficiency and directed him to file a response. Because Jackson was proceeding pro se, we abated the appeal and remanded it to the trial court to conduct a hearing to admonish Jackson on the dangers and disadvantages of self-representation and to make findings of fact and conclusions -2- 04-25-00526-CR of law as to whether his decision to proceed pro se in his appeal is knowingly and intelligently made. See Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984) (acknowledging a defendant’s right to self-representation, but “[i]n order to completely and intelligently choose self- representation, the defendant should be made aware of the dangers and disadvantages of self- representation”). Additionally, because Jackson failed to file a brief, we ordered the trial court to conduct a hearing consistent with Texas Rule of Appellate Procedure 38.8(b). See TEX. R. APP. P. 38.8(b)(2), (3). The trial court found Jackson was competent to waive the right to counsel, his decision to proceed without counsel was knowingly, voluntarily, and intelligently made, and he wished to prosecute his appeal. Thereafter, we reinstated the appeal and ordered Jackson’s brief due on or before March 27, 2026. Jackson failed to file a brief by that deadline. Consequently, we notified Jackson that the case would be submitted without briefs if no response were received by April 27, 2026. To date, Jackson has not filed a brief or response in this court. We submitted the appeal without briefs on May 28, 2026. See TEX. R. APP. P. 38.8(b)(4). Thereafter, we sought a supplemental clerk’s record because the clerk’s record did not include the trial court’s docket sheet. See TEX. R. APP. P. 34.5(a)(3) (requiring clerk’s record to include docket sheet); id. R. 34.5(c), (d) (providing for supplementation of clerk’s record and correction if defective). On August 21, 2026, the trial court clerk filed a supplemental clerk’s record with trial court’s “Register of Actions.” The register shows that two pre-trial hearings were held in this matter. We issued an order directing the court reporter to supplement the reporter’s record with transcripts from the two pre-trial hearings shown on the register. See id. R. 34.6(d) (providing for supplementation of reporter’s record). On August 26, 2026, the trial court filed a notice that no record was made of either pre-trial hearing. -3- 04-25-00526-CR FUNDAMENTAL ERROR An appellant’s failure 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). An “appellate court may consider [an] appeal without briefs, as justice may require.” TEX. R. APP. P. 38.8(b)(4). “When an appellant fails to file a brief, we may submit the case without briefs and review the entire record, in the interest of justice, to determine if the record reveals fundamental error.” Washington v. State, No. 01-13-01038-CR, 2015 WL 7300511, at *2 (Tex. App.—Houston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op., not designated for publication); see also Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994) (submitting pro se appellant’s case without briefs and reviewing 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) (collecting cases where criminal appeals were submitted without pro se appellants’ briefs and records were reviewed for fundamental error). Fundamental error is error so egregious and harmful that an accused has not had a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on reh’g). 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 resulting in egregious harm; (8) holding trials at a location other than the county seat; (9) prosecution under an ex post fact law; and (10) comments by a trial judge which taint the -4- 04-25-00526-CR presumption of innocence. See Saldano v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002); Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.). RIGHT TO COUNSEL Based on the record before us, we conclude that Jackson’s trial was rendered fundamentally unfair and unreliable because he was denied the right to counsel. A. Applicable Law “Criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed.” Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978); see TEX. PENAL CODE ANN. § 38.15(b) (interference with public duties is a Class B misdemeanor); id. § 12.22 (setting punishment for Class B misdemeanor as confinement in jail for a term not to exceed 180 days, a fine not to exceed $2,000, or both). While a defendant has a constitutional right to the assistance of counsel, criminal defendants also have a constitutional right to self-representation. Osorio-Lopez v. State, 663 S.W.3d 750, 756 (Tex. Crim. App. 2022) (citing U.S. CONST. amend. VI; TEX. CONST. art. I § 10; Faretta v. California, 422 U.S. 806, 819 (1975)). Where a defendant wishes to assert his constitutional right to self-representation, the right to counsel must be waived and the right of self-representation must be asserted. Osorio-Lopez, 663 S.W.3d at 756 (citing Brown v. Wainright, 665 F.2d 607, 610 (5th Cir. 1982)). A waiver of the right to counsel must be knowingly, intelligently, and voluntarily made. See TEX. CRIM. PROC. art. 1.051(g); Faretta, 422 U.S. at 834–36. A voluntary decision is one made free of coercion. Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim. App. 1997). The decision to waive counsel “is made ‘knowingly and intelligently’ if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self- representation.” Id. (citing Faretta, 422 U.S. at 834–36). A full understanding of the right to -5- 04-25-00526-CR counsel includes the right to appointed counsel for indigent defendants, and the trial court has a duty to inquire whether the defendant desires and is eligible for appointment of counsel. Fernandez v. State, 283 S.W.3d 25, 28–30 (Tex. App.—San Antonio 2009, no pet.). A defendant’s assertion of the right to self-representation “must be clear and unequivocal.” Osorio-Lopez, 663 S.W.3d at 756. Furthermore, a court’s responsibility does not end when a defendant represents that he is informed of the right to counsel and desires to waive it. Blankenship, 673 S.W.2d at 583 (citing Von Moltke v. Gillies, 332 U.S. 708, 723 (1948)). “Judges must take an active role in assessing the defendant’s waiver of counsel.” Blankenship, 673 S.W.2d at 583. The record must contain proper admonishments concerning pro se representation and the record should reflect that the admonishments were given to the defendant before any act of self-representation. Goffney v. State, 843 S.W.2d 583, 584–85 (Tex. Crim. App. 1992) (citing Blankenship, 673 S.W.2d at 583). While there is no formulaic line of questioning to establish a knowing and intelligent waiver, the trial court should typically inquire into the accused’s age, background, education, and experience. See Blankenship, 673 S.W.2d at 583; Ford v. State, 870 S.W.2d 155, 158 (Tex. App.—San Antonio 1993, pet. ref’d); Calcorone v. State, 675 S.W.2d 785, 786 (Tex. App.—Houston [14th Dist.] 1984, no pet.). “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835 (citation omitted). “Given the fundamental nature of the right to counsel, courts indulge every reasonable presumption against the validity of a waiver of counsel.” Fernandez, 283 S.W.3d at 28–29 (citing Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008)). Allowing a defendant to represent -6- 04-25-00526-CR himself without a valid waiver of the right to counsel denies that defendant the right to counsel. Williams, 252 S.W.3d at 358–59. The denial of the right to counsel is reversible error that is not subject to a harm analysis. Fernandez, 283 S.W.3d at 30; see TEX. R. APP. P. 44.2(a). B. Analysis Here, there is no evidence that Jackson clearly and unequivocally asserted his right to self- representation or knowingly and intelligently waived his right to counsel before his trial. 1 First, there is no indication that Jackson made a “clear and unequivocal” assertion of the right to self-representation. See Osorio-Lopez, 663 S.W.3d at 756. Before trial, Jackson signed a document entitled “Waiver of Right to Counsel by Defendant and Request to Discuss Case with County Attorney.” However, this document does not clearly and unequivocally assert Jackson’s right to self-representation because he initialed a section on the form stating, “he[] has not made a decision as to whether or not to represent himself[] nor to apply for court-appointed counsel.” Additionally, this document does not show a knowing and intelligent waiver of Jackson’s right to counsel because it states he “wished to temporarily waive [the] right [to counsel] and discuss the case with the County Attorney.” On the day of trial, Jackson was provided a jury trial waiver that stated, “I understand that I have the right to have an attorney present here today and if I cannot afford an attorney I have the right to a court appointed attorney if I am found to be indigent.” While Jackson signed the waiver, it merely “waived [his] right of a trial by jury,” but did not include an explicit waiver of the right to counsel. Moreover, it is only after the court has “determine[d] that the waiver is voluntarily and intelligently made [that] the court shall provide the defendant” with 1 Because the record should reflect that the admonishments were given to the defendant before any act of self- representation, the trial court’s January 22, 2026, findings of fact and conclusions of law regarding Jackson’s pro se representation and waiver of counsel on appeal do not suffice. See Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992); see also Lott v. State, 874 S.W.2d 687, 687 (Tex. Crim. App. 1994) (“The trial court fully admonished appellant of the dangers and disadvantages of self-representation prior to trial and prior to this appeal.”). -7- 04-25-00526-CR a written waiver. See TEX. CODE CRIM. PROC. § 1.051(g); Williams v. State, 194 S.W.3d 568, 579 (Tex. App.—Houston [14th Dist.] 2006) aff’d 252 S.W.3d 353 (Tex. Crim. App. 2008) (“Only after the trial court has made the determination that the defendant has voluntarily and intelligently waived her right to counsel is the trial court to provide the defendant with the written waiver.”). Even were we to assume that Jackson asserted his right to self-representation through these forms, the record does not reflect that Jackson was given the admonishments necessary to establish his knowing, intelligent, and voluntary waiver of the right to counsel. See TEX. CRIM. PROC. art. 1.051(g); Faretta, 422 U.S. at 834–36; Goffney, 843 S.W.2d at 584–85. The trial court had a responsibility, prior to trial, to conduct a “penetrating and comprehensive examination” of Jackson’s waiver of counsel and thoroughly admonish him of the dangers and disadvantages of self-representation. Blankenship, 673 S.W.2d at 583; see also Osorio Lopez, 663 S.W.3d at 575; Williams, 252 S.W.3d at 356 (“The trial judge is responsible for determining whether a defendant’s waiver is knowing, intelligent, and voluntary.”). Here, there is no indication that this was done. The clerk’s record contains no document suggesting a penetrating inquiry, and no record was taken of pre-trial hearings, during which the matter could have been addressed. At the bench trial, the trial transcript does not show that the trial court inquired into Jackson’s age, background, education, experience, indigent status, or admonished him of the dangers and disadvantages of proceeding without representation. See Blankenship, 673 S.W.2d at 583; Ford, 870 S.W.2d at 158. Instead, the record shows that the only time the trial court inquired into Jackson’s potentially indigent status was during sentencing when the court was determining whether to assess a fine. 2 It 2 The trial court’s judgment states: “On this day, the Court inquired as to whether Defendant has sufficient resources or income to immediately pay all or part of the fine and costs assessed in this cause. The Court considered Defendant’s financial history and all other relevant ability to pay information and finds the follows: Defendant does not have sufficient resources and income to immediately pay the entire fine and costs imposed herein and is ORDRED to pay said fine and costs on the date or at the designated interval set forth in the ‘Payment Schedule’ signed by the Court and Defendant on this day.” -8- 04-25-00526-CR is not clear from the record that Jackson understood that, if he were indigent, he had a right to appointed counsel. In fact, the record demonstrates that Jackson may not have fully understood his right to counsel because he twice requested counsel during sentencing when he was asked to sign the trial court’s judgment and the “Defendant’s Agreement to Waive the Risk and Needs Assessment.” The trial court summarily responded “[y]ou’re the one that chose to be your own attorney today and not have that representation here.” Based on this record, we cannot presume that Jackson was offered counsel but “intelligently and understandingly” rejected the offer. Goffney, 843 S.W.2d at 585. Accordingly, we conclude the record does not show that Jackson’s waiver of counsel was made knowingly and intelligently. See Id.(“[P]rior to any act of self-representation by the defendant, the record should reflect that the admonishments were given to the defendant.”); Fernandez, 283 S.W.3d at 31 (holding because appellant was not sufficiently admonished, his waiver of the right to counsel was invalid); Williams, 194 S.W.3d at 578–79 (holding appellant’s waiver was invalid because trial court failed to inquire into appellant’s indigent status and admonish appellant about her right to appointed counsel); cf. Ford, 870 S.W.2d at 158 (concluding record was sufficient to show appellant knowingly and intelligently waived the right to counsel where trial court inquired about appellant’s age, education, and professional experience, sought to determine whether appellant chose to represent himself because he could not retain a lawyer, and advised appellant about the disadvantages of self-representation). “A complete denial of the constitutional right to trial counsel is a structural defect, and ‘prejudice is presumed because the trial has been rendered inherently unfair and unreliable.’” Fernandez, 283 S.W.3d at 30 (quoting Williams, 252 S.W.3d at 357). Therefore, because Jackson was allowed to represent himself without a valid waiver, the trial court committed reversible error -9- 04-25-00526-CR by denying Jackson his constitutional right to be represented by counsel during trial. Williams, 252 S.W.3d at 358–59; Fernandez, 283 S.W.3d at 30 (the denial of the right to counsel “is reversible error not subject to a harm analysis.”); see also TEX. R. APP. P. 44.2(a). CONCLUSION Because the record reveals fundamental error, we reverse the trial court’s judgment and remand the cause for a new trial. See TEX. R. APP. P. 21.3(a). Lori Massey Brissette, Justice DO NOT PUBLISH - 10 -