



NUMBER 13-98-570-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
___________________________________________________________________


THE STATE OF TEXAS,	Appellant,


v.

JERRY WAYNE CURL,	Appellee.

___________________________________________________________________


On appeal from the County Court at Law No. 3 
of Hidalgo County, Texas.
___________________________________________________________________


OPINION ON MOTION FOR REHEARING

Before the Court En Banc
Opinion by Justice Dorsey

	This case presents the question of whether permanent abatement
or dismissal is the appropriate remedy when the State is the appellant
in a criminal appeal and the appellee/defendant dies during the
pendency of the appeal.  We had earlier abated the appeal because of
the death of the appellee.  His attorney has filed a motion for rehearing
en banc claiming that we have no jurisdiction because of the death of
the appellee, and abatement is improper because it is a proper remedy
only when the appellant not the appellee dies while the appeal is
pending.  We agree, and hold that the State's appeal should be
dismissed because the appellate court loses jurisdiction when all the
issues in the appeal become moot due to the death of the criminal
defendant.

	In this case, the State appealed Curl's "acquittal" for driving while
intoxicated.(1)  Curl died during the pendency of this appeal.  Previously,
this Court granted permanent abatement of the appeal pursuant to a
motion by the State.  See Tex. R. App. P. 7.1(a)(2) (requiring permanent
abatement of an appeal in a criminal case when the defendant at trial
is the appellant).

	Two motions remain pending.  Prior to his death, Curl filed a
motion to dismiss the appeal on grounds that the State was not
permitted to appeal the verdict of acquittal due to double jeopardy
concerns.  We did not rule on that motion due to our permanent
abatement of the case.  After the abatement, Curl's attorneys filed a
motion for rehearing en banc urging this Court to withdraw the order
permanently abating the appeal, and to dismiss the appeal for want of
jurisdiction.  We find that to indeed be the appropriate course of action,
but not for the reasons advanced by Curl's counsel.

	Rule 7.1(a)(2) states that: 

	If 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.


Tex. R. App. P. 7.1(a)(2) (emphasis added).  The rule does not address
the situation where the appellee in a criminal case dies after the appeal
is perfected but before the appellate court issues the mandate. 
Accordingly, we hold that Rule 7.1(a)(2) does not require permanent
abatement, rather than dismissal, of this appeal.

	The court of criminal appeals has stated many times that the
death of the appellant during the pendency of his appeal deprives the
courts of jurisdiction over the appeal.(2)  The proper remedy has long
been held to be abatement of the appeal.  Accord Graham, 991 S.W.2d
802­03; Vargas, 659 S.W.2d 422­23; Tex. R. App. P. 7.1(a)(2).  However,
we have not uncovered a case holding abatement to be the proper
remedy in an appeal brought by the State, rather than by a convicted
defendant.

	In Vargas v. State, the court of criminal appeals explained the
rationale behind requiring permanent abatement, rather than dismissal,
in cases where the appellant dies during the pendency of the appeal:

	The death of the appellant during the pendency of appeal
deprives this Court of jurisdiction.  See  King v. State, 379
S.W.2d 907 (Tex. Crim. App. 1964); Crips v. State, 240 S.W.
1112 (Tex. Crim. App. 1922); Hardin v. State, 36 S.W. 82
(Tex. Crim. App.1896);  March v. State, 5 Tex. Ct. App. 450
(1879).  Although the usual disposition of an appeal in the
absence of jurisdiction is dismissal,  . . .  the authorities cited
above have instead abated the proceedings.  . . .  This
distinction is apparently based upon two factors:  if the
appeal is dismissed, the practical result is that the judgment
of conviction becomes final, as if the judgment had been
affirmed after full appellate review; conversely, if the
appellate court sets aside the judgment and orders the
prosecution dismissed, the disposition once again equals the
result usually reached only after full appellate review.  Either
disposition seems inappropriate when the appellant's death
has deprived the appellate court of the authority to
adjudicate appellant's complaints whatever their merit.

Vargas, 659 S.W.2d at 422­23.

	However, when the State seeks reversal of the trial court's order
that resulted in a defendant's acquittal, different concerns arise.  We
find guidance in the early Texas Court of Appeals opinion, March v.
State,  5 Tex. Ct. App. 450 (1879).  In March, the appellant was
convicted in three different cases.  Id. at 451.  He appealed from all the
judgments, but died before they were reached for decision.  Id.  His
widow filed a suggestion of his death, and moved the court to abate all
the proceedings.  Id. at 451­52.  The court stated:

	[I]n a criminal prosecution, when the accused has taken an
appeal in the manner prescribed by law, the proceeding is
still pending and undetermined until the appeal shall have
been decided; and that in case the appellant die whilst the
appeal is pending and undetermined, the prosecution or the
criminal action does not survive, but, on the death of the
appellant pending the appeal, the prosecution abates in toto,
whatever be the judgment appealed from.


Id. at 455­456.

	The court's reasoning was premised on the fact that the appeal
was brought by a convicted criminal defendant.  Id.  The court reasoned
that the appeal should be abated in case of his death because the
conviction is not fully settled.  Id.

	Interestingly, though, the court plainly stated that the criminal
action does not survive the death of the defendant, but "abates in toto." 
Id. at 456.  The court looked to the penal code for the definition of the
term "criminal action," and found that it meant "the whole or any part
of the procedure which the law provides for bringing offenders to
justice."  Id. at 453­54.  Thus, under March, "any part of the procedure
which the law provides for bringing offenders to justice" does not
survive the death of a criminal defendant.  Accordingly, the State's
prosecution of an appeal does not survive the death of a criminal
defendant/appellee.  We hold that the appeal of Curl's case must be
dismissed.

	Our other rationale for dismissing the State's appeal is simple. 
When the criminal defendant dies, all issues in the appeal of his case
become moot.  If the State were to be successful in its appeal and the
judgment reversed and remanded to the trial court, the dead defendant
could not be tried anew.  No matter how this court would decide the
issues presented, no practical result would issue.  Mr. Curl's death
mooted any issue to be determined by this appeal.   The courts of
appeals are without jurisdiction to entertain an appeal wherein all the
issues sought to be resolved by the court are moot.

	Because we cannot have jurisdiction over an appeal when all the
issues are moot, and because the rationale for requiring permanent
abatement does not apply when the State is the appellee, we GRANT
the Motion for Rehearing en banc and DISMISS the appeal for want of
jurisdiction.


								______________________________

								J. BONNER DORSEY,

								Justice


Publish.

Tex. R. App. P. 47.3(b).


Opinion delivered and filed

this 28th day of September, 2000.

1. One issue in this case is whether Curl was actually acquitted, or
whether the trial court's actions of instructing the jury to render a not-guilty verdict amounted to an impermissible order dismissing the
prosecution.  Our determination that this Court lacks jurisdiction is
unrelated to this issue.
2. See Graham v. State, 991 S.W.2d 802, 802­803 (Tex. Crim. App.
1998);Whitmire v. State, 943 S.W.2d 894, 895 (Tex. Crim. App. 1997);
Rheinlander v. State, 918 S.W.2d 527, 528 (Tex. Crim. App.1996); Ryan
v. State, 891 S.W.2d 275 (Tex. Crim. App. 1994); Molitor v. State, 862
S.W.2d 615 (Tex. Crim. App. 1993); Garcia v. State, 840 S.W.2d 957
(Tex. Crim. App.1992); Hanson v. State, 790 S.W.2d 646 (Tex. Crim.
App. 1990); August v. State, 685 S.W.2d 56 (Tex. Crim. App.
1985);Vargas v. State, 659 S.W.2d 422, 422­23 (Tex. Crim. App. 1983);
King v. State, 379 S.W.2d 907 (Tex. Crim. App.1964).  

