Brenton Ray Overturf v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-96-123-CR

BRENTON RAY OVERTURF,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 24,022-361

MEMORANDUM OPINION ON

SUA SPONTE ABATEMENT OF APPEAL

On March 1, 1996, a jury found Brenton Overturf guilty of aggravated robbery and assessed punishment of forty years' incarceration. Tex. Penal Code Ann. 29.03 (Vernon 1994). Overturf's sentence was imposed on March 1, 1996; a motion for new trial was filed on March 19; and a notice of appeal was filed on May 30.

The transcript was filed on June 26, 1996, and the statement of facts was filed on August 8, 1996. When no brief was timely filed, we abated the cause to the trial court for a determination of, among other things, whether Overturf wished to continue the prosecution of the appeal and, if so, whether he was receiving effective assistance of counsel.

The abatement hearing was held on February 13, 1997, and a statement of facts from the hearing was filed in this court on February 26, 1997. This statement of facts reveals that, at the hearing, the attorney appearing on behalf of Overturf informed the trial court that he believed Overturf had passed away. In response to this statement, the trial court instructed the attorney to file in this court a copy of Overturf's death certificate. No further action was taken in the case until March 19, 1997, when by letter we renewed the trial court's request that a death certificate be filed in this court.

On March 27, 1997, counsel representing Overturf sent us a copy of a letter from S.O. Woods, Jr., Chairman of the State Classification Committee with the Texas Department of Criminal Justice-Institutional Division. In the letter, Woods states that Overturf died in the custody of TDCJ-ID on August 10, 1996. No party has presented this court with a copy of a death certificate for Overturf.

Overturf's death deprives this court of jurisdiction of the appeal. Molitor v. State, 862 S.W.2d 615 (Tex. Crim. App. 1993). When an appellant in a criminal case dies after the appeal is perfected but before the mandate is issued, the appellate court shall order the cause permanently abated. Tex. R. App. P. 9(b); see Molitor, 862 S.W.2d at 615.

Therefore, the appeal is abated.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings and

Justice Vance

Appeal abated

Opinion delivered and filed April 9, 1997

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