Polhemus v. State

659 S.W.2d 433 (1983)

James Arthur POLHEMUS, Appellant, v. The STATE of Texas, Appellee.

No. 747-83.

Court of Criminal Appeals of Texas, En Banc.

November 2, 1983.

Stanley G. Schndider, Gary M. Polland, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and James C. Brough, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

*434 Before the court en banc.

PER CURIAM.

Appellant was convicted of the offense of theft over $200.00 by a jury. The trial court assessed punishment at imprisonment for 10 years in the Texas Department of Corrections.

The Court of Appeals found that the appellant had died on March 23, 1983. On the basis of King v. State, 379 S.W.2d 907 (Tex. Cr.App.1964) the court of appeals held that: "The appeal is abated, the cause is remanded to the trial court with instructions to set aside the judgment and dismiss the indictment for want of jurisdiction." Polhemus v. State, 654 S.W.2d 545 (Tex.App.1983).

The State has filed a petition for discretionary review arguing that the court of appeals was in error instructing the trial court to set aside the judgment and dismiss the indictment.

Mojica v. State, 653 S.W.2d 121 (Tex. App., Austin, 1983) the court of appeals reviewed the older cases from this Court and held that the death of the appellant deprived the appellate court of authority to adjudicate his complaints and permanently abated the appeal but did not instruct the trial court to set aside the judgment or dismiss the indictment.

In Vargas v. State, 659 S.W.2d 422 (Tex. Cr.App.1983) this Court approved the Austin Court of Appeals analysis in Mojica v. State, supra, and held it equally applicable to a case where the El Paso Court of Appeals had affirmed and the Appellant's Petition for Discretionary Review had been granted before the appellant's death.

Therefore, pursuant to the authority conferred on this court by Articles 44.37 and 44.45(b), V.A.C.C.P., Tex.Cr.App.R. 304(a) the State's Petition for Discretionary Review is granted. Sanchez v. State, 628 S.W.2d 780 (Tex.Cr.App.1982); Froyd v. State, 633 S.W.2d 884 (Tex.Cr.App.1982). This case is ordered remanded to the Court of Appeals for the Fourteenth Supreme Judicial District for reconsideration of its opinion in light of Mojica v. State, supra, and Vargas v. State, supra.

IT IS SO ORDERED.