Jason Krieg v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 7, 2021
• Docket: 05-21-00310-CR
• Status: Published

Opinion

Dismiss and Opinion Filed June 7, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00310-CR

JASON KRIEG, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 1572241

MEMORANDUM OPINION Before Justices Osborne, Pedersen, III, and Nowell Opinion by Justice Nowell Jason Krieg was convicted on January 13, 2021 of sexual assault of a child.

By letter dated March 25, 2021 and postmarked March 29, 2021, appellant indicated

he wished to appeal his conviction. That case was assigned appellate number 01-21-

00201-CR, and on April 29, 2021, was transferred from the First District Court of

Appeals in Houston to this Court under a docket equalization order from the Texas

Supreme Court.

After reviewing the clerk’s record, this Court had questions regarding our

jurisdiction over the appeal and asked the parties to file jurisdictional letter briefs.

We noted that appellant waived his right to appeal when the trial court followed the plea bargain agreement between appellant and the State. See Shankle v. State, 119

S.W.3d 808, 813 (Tex. Crim. App. 2003). We also noted that appellant’s notice of

appeal was untimely. See TEX. R. APP. P. 26.2 (notice of appeal in criminal case must

be filed within thirty days of the day the trial court pronounces sentence or enters

appealable order). To date, neither party has responded to this Court’s request for

jurisdictional briefing.

The appellate record shows appellant pleaded guilty in a plea bargain

agreement in which the State agreed to abandon one of the two enhancement

paragraphs alleged in the indictment and to waive its right to a jury trial. On January

13, 2021, the trial court accepted appellant’s guilty plea, found him guilty, and

assessed punishment at thirty-five years in prison, enhanced by the prior felony

conviction. The trial court certified that appellant waived his right to appeal,

appellant signed the certification, and the record supports that certification. See

Carender v. State, 155 S.W.3d 929, 931 (Tex. App.—Dallas 2005, no pet.)

(explaining that agreement to waive enhancement allegation in exchange for

defendant agreeing to plead guilty constituted plea agreement that placed cap on

punishment).

In addition, the record shows appellant’s notice of appeal was untimely. A

defendant perfects an appeal by filing with the trial court clerk, within thirty days

after the date sentence was imposed, a written notice of appeal showing his desire to

appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a), (b). Under the prisoner mailbox

–2– rule, if a pro se inmate timely delivers a document to prison authorities for

forwarding to the court clerk, the document is deemed filed when placed with prison

officials for mailing. Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App.

2010). Here, the record also shows appellant’s notice of appeal, which was due on

February 12, 2021, was filed on March 25, 2021. See TEX. R. APP. P. 26.2.

Under these circumstances, we dismiss this appeal.

210310f.u05 /Erin A. Nowell// ERIN A. NOWELL Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b)

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JASON KRIEG, Appellant On Appeal from the 338th District Court, Harris County, Texas No. 05-21-00310-CR V. Trial Court Cause No. 157224101010. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Nowell. Justices Osborne and Pedersen, III participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want

of jurisdiction.

Judgment entered this 7th day of June, 2021.

–4–