Summary
holding that the death of appellant during pendency of discretionary review resulted in abatement of the appeal but not in abatement from inception of the proceedings
Summary of this case from State v. SalazarOpinion
No. 683-90.
November 4, 1992.
Appeal from the 218th Judicial District Court, Atascosa County, Olin B. Strass, J. of Appeals
Don Clowe, Albert Lopez, San Antonio, Joseph A. Connors, III, Dorina Ramos, McAllen, for appellant.
Alger H. Kendall, Jr., Dist. Atty. and Lynn Ellison, Asst. Dist. Atty., Karnes City, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON MOTION TO ABATE APPEAL
Appellant was convicted by a jury of the offense of aggravated possession of marihuana and sentenced to fifty years imprisonment in the penitentiary and a fine of $5000.00.
On appeal, the Fourth Court of Appeals reversed the conviction and ordered an acquittal, holding that there was insufficient evidence to support the conviction because there existed a reasonable hypothesis other than the guilt of the accused. Garcia v. State, 790 S.W.2d 22 (Tex.App. — San Antonio 1990). We granted the State's petition for discretionary review. In an opinion delivered June 3, 1992, we reversed the judgment of the court of appeals and affirmed the judgment of the trial court. On June 22, 1992, appellant filed a motion for rehearing, which is now moot.
A motion to abate the appeal has been filed on behalf of appellant. Attached to the motion is a certified copy of appellant's certificate of death. The certificate recites that appellant died on September 12, 1992.
The death of an appellant during the pendency of an appeal deprives both this Court and the court of appeals of jurisdiction. See August v. State, 685 S.W.2d 56 (Tex.Cr.App. 1985). Under these circumstances, the appropriate disposition is the abatement of the appeal. Tex.R.App.Pro. 9(b). Accordingly, the motion for rehearing is dismissed, the prior opinions are withdrawn and the appeal is permanently abated.