Eric Wayde Berry v. State

• Court: Court of Appeals of Texas
• Decided: February 12, 2009
• Docket: 01-08-00533-CR
• Status: Published

Opinion

Opinion issued February 12, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00533-CR

ERIC WAYDE BERRY, Appellant ⁽¹⁾

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 08CR1032

MEMORANDUM OPINION ON PERMANENT ABATEMENT

Appellant's counsel, Mark W. Stevens, has filed a motion to dismiss this appeal. We construe counsel's motion as a motion to permanently abate the appeal. See Tex. R. App. P. 7.1 (a) (2). We note that on January 29, 2009, a supplemental clerk's record was filed that contains a copy of the certificate of death for the appellant, Eric Wade Berry. The certificate states that appellant died on October 14, 2008, while in Lebannon, Wilson County, Tennessee. The death of an appellant during the pendency of an appeal deprives this court of jurisdiction. Moliter v. State, 862 S. W. 2d 615, 616 (Tex. Crim. App. 1993). The motion to permanently abate the appeal is granted.

Therefore, we order the appeal in cause trial court number 08CR1032 is permanently abated.

PER CURIAM

Panel consists of Justices Jennings, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).

1. The clerk's record filed on June 30, 2008 had documents that reflect that Eric Wayde Berry is also known as Eric Wade Berry and Eric Berry.