Jason Krieg v. the State of Texas ( 2021 )

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
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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)
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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.
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