Jason Neil Kosier v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 11, 2024
• Docket: 03-24-00331-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00331-CR

Jason Neil Kosier, Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY NO. 23CCR02924, THE HONORABLE JOHN MICHAEL MISCHTIAN, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

A jury found appellant Jason Neil Kosier guilty of the misdemeanor offense of

deadly conduct. Kosier, proceeding pro se, filed a notice of appeal after the jury’s verdict but

before the trial court sentenced him, making his notice premature. See Tex. R. App. P. 27.1(b)

(“In a criminal case, a prematurely filed notice of appeal is effective and deemed filed on the

same day, but after, sentence is imposed or suspended in open court” but “is not effective if filed

before the trial court makes a finding of guilt or receives a jury verdict.”); Franks v. State,

219 S.W.3d 494, 497 (Tex. App.—Austin 2007, pet. ref’d) (“[U]nder Rule 27.1(b), a

prematurely filed notice of appeal is one that is filed in the time period after the jury’s verdict

and before sentence is imposed.”). We have now received the clerk’s record, which does not contain a copy of

Kosier’s judgment of conviction or the trial court’s certification of Kosier’s right to appeal. The

county clerk’s office has informed us that it cannot provide those documents because

the punishment hearing, which was originally set for June 5, 2024, has been rescheduled for

July 24, 2024, due to Kosier “fail[ing] to report as ordered to a Pre-Sentence Investigation

Interview.” Without the judgment of conviction and certification of Kosier’s right to appeal, we

cannot move forward with the appeal at this time.

The appropriate remedy under these circumstances is to abate the appeal pending

the punishment hearing and the pronouncement of Kosier’s sentence in the court below. See

Meachum v. State, 273 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008) (abatement

order). Accordingly, we abate this appeal and remand the case to the trial court for further

proceedings. A supplemental clerk’s record, containing both Kosier’s judgment of conviction

and the trial court’s certification of Kosier’s right to appeal, shall be filed in this Court within ten

days after the trial court pronounces Kosier’s sentence in open court. The appeal will be

reinstated after the supplemental clerk’s record is filed.

Before Chief Justice Byrne, Justices Triana and Kelly

Abated and Remanded

Filed: July 11, 2024

Do Not Publish