IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. 74,564

 

JOHN WILLIAM ELLIOTT, Appellant

v.


THE STATE OF TEXAS


ON DIRECT APPEAL
FROM TRAVIS COUNTY
 Johnson, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Price, Keasler, Hervey, Holcomb, & Cochran, J.J., joined. Womack J., did not participate.


O P I N I O N



Appellant was convicted of capital murder and sentenced to death. We affirmed the judgment and sentence. Elliott v. State, 858 S.W.2d 478 (Tex. Crim. App.), cert. denied, 510 U.S. 997 (1993).

The trial court set appellant's execution date for February 4, 2003. On February 3, 2003 the trial court denied appellant's motion for DNA testing of evidence pursuant to Chapter 64 of the Texas Code of Criminal Procedure. On February 4, 2003, we denied appellant's motion for stay of execution pending, among other things, appeal of the denial of his request for DNA testing. Appellant's execution was carried out on February 4, 2003. On February 5, 2003, we received his appeal from the denial of appellant's motion for post-conviction DNA testing of evidence.

The death of an appellant during the pendency of an appeal deprives this Court of jurisdiction. Freeman v. State, 11 S.W.3d 240 (Tex. Crim. App. 2000); Graham v. State, 991 S.W.3d 802 (Tex. Crim. App. 1998). Accordingly, we permanently abate appellant's appeal. Whitmire v. State, 943 S.W.2d 894 (Tex. Crim. App. 1997); Rheinlander v. State, 918 S.W.2d 527 (Tex. Crim. App. 1996); Vargas v. State, 659 S.W.2d 422 (Tex. Crim. App. 1983).

Johnson, J.

Delivered: May 21, 2003

En Banc

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