State v. Sanford, Donald Ray

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) THE STATE OF TEXAS, ) No. 08-01-00305-CR ) Appellant, ) Appeal from ) v. ) 358th District Court ) DONALD RAY SANFORD, ) of Ector County, Texas ) Appellee. ) (TC# d-26,039) O P I N I O N Pending before the Court is a joint motion to dismiss the State=s appeal due to the death of the Appellee, Donald Ray Sanford. We grant the motion and dismiss the appeal. FACTUAL SUMMARY A jury convicted Sanford of aggravated kidnaping and aggravated assault. The trial court subsequently granted Sanford=s motion for new trial and the State filed a notice of appeal. The State has filed its brief. The parties have filed a joint motion to dismiss the State=s appeal due to the death of Sanford.[1] Attached to the motion is a certified copy of Sanford=s death certificate which recites that he died on May 19, 2002. DEATH OF CRIMINAL DEFENDANT/APPELLEE It is well established that the death of an appellant during the pendency of an appeal deprives this Court of jurisdiction. See Freeman v. State, 11 S.W.3d 240 (Tex.Crim.App. 2000); Ryan v. State, 891 S.W.2d 275 (Tex.Crim.App. 1994); Molitor v. State, 862 S.W.2d 615 (Tex.Crim.App. 1993). In such a case, the proper remedy is abatement of the appeal. See Tex.R.App.P. 7.1(a)(2)(AIf the appellant in a criminal case dies after an appeal is perfected but before the appellate court issues the mandate, the appeal will be permanently abated.@); Graham v. State, 991 S.W.2d 802, 802-03 (Tex.Crim.App. 1998). A different issue is presented when the criminal defendant/appellee dies during the pendency of an appeal by the State, particularly where the conviction in the underlying case has been set aside. See State v. Curl, 28 S.W.3d 838, 840-41 (Tex.App.--Corpus Christi 2000, no pet.). Rule 7.1(a)(2) simply does not address this situation. When the criminal defendant/appellee dies during the pendency of a State=s appeal, all issues become moot. State v. McCaffrey, 76 S.W.3d 392 (Tex.Crim.App. 2002); Curl, 28 S.W.3d at 840-41. In such a case, the proper remedy is dismissal of the appeal rather than permanent abatement. Accordingly, we grant the joint motion and dismiss the appeal. August 1, 2002 ANN CRAWFORD McCLURE, Justice Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish) [1] The State does not seek dismissal of the appeal pursuant to Tex.R.App.P. 42.2 which allows voluntary dismissal of an appeal in criminal cases. Even if the State had followed the procedures set forth in Rule 42.2, we would be required to consider whether the death of the criminal defendant/appellee has mooted the issues on appeal.