Jason Neil Kosier v. the State of Texas

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