EX PARTE MARK EDWARD BERRY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,171-02

EX PARTE MARK EDWARD BERRY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN

CAUSE NO. W05-35247-Q(A) IN THE 204TH DISTRICT COURT

DALLAS COUNTY

Per Curiam.

O R D E R

Applicant was convicted of indecency with a child and sentenced to life imprisonment. Pursuant to Texas Code of Criminal Procedure Article 11.07, counsel on applicant's behalf filed in the trial court in March 2009 an application for a writ of habeas corpus. The writ application was forwarded to this Court in January 2011. On February 9, 2011, the Court filed and set the case and granted relief in an unpublished opinion. See Ex parte Berry, No. AP-76,498 (Tex. Crim. App. Feb. 9, 2011)(not designated for publication).

On February 14, 2011, this Court received information, confirmed by a copy of a death certificate, that applicant died on December 30, 2009. The death of a defendant deprives this Court of jurisdiction. However, because this Court did not have notice of applicant's death when it received the writ application, it improperly filed and set the case and granted relief. Because we now know that we did not have jurisdiction to take such action, we dismiss the writ application and order the Clerk of this Court to withdraw the opinion and mandate that was improperly issued.

IT IS SO ORDERED THIS THE 16TH DAY OF MARCH, 2011.

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