The State of Texas v. Truman McCollum

       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-23-00528-CR
                                      NO. 03-23-00529-CR


                                  The State of Texas, Appellant

                                                 v.

                                  Truman McCollum, Appellee


            FROM THE COUNTY COURT AT LAW NO. 3 OF BELL COUNTY
       NO. MR2C2101190, THE HONORABLE REBECCA DEPEW, JUDGE PRESIDING



                 ORDER AND MEMORANDUM OPINION

PER CURIAM

               In the above appeals filed by the State of Texas, challenging the trial court’s order

granting appellee Truman McCollum’s pretrial motion to suppress evidence, counsel for

McCollum has filed a suggestion of death, representing that they “have been informed by a

family member that Mr. McCollum has died during the pendency of this State’s appeal” and that

they are in the process of obtaining a death certificate to provide verification of this to the Court

so that this appeal may be dismissed.” Counsel “respectfully request a 60-day abatement to

obtain a copy of the death certificate,” and they advise that “[o]nce proof of death is filed with

this Court, th[ese] appeal[s] should be dismissed.”

               “Under Tex. R. App. P. 7.1(a)(2), if an 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.”     State v. McCaffrey, 

 (Tex. Crim. App. 2002)
(emphasis added). “But when the State is the party appealing,” and “a defendant dies during the

pendency of a State’s appeal, all issues become moot” and the appeal should be dismissed. 

; see also State v. Uhrich, No. 03-19-00909-CR, 

, at *1 (Tex. App.—

Austin Oct. 23, 2020, no pet.) (mem. op., not designated for publication).

               Accordingly, we abate these appeals so that counsel for McCollum may obtain

proof of McCollum’s death. Counsel is instructed to file proof of death with this Court no later

than 60 days from today’s date. After this Court receives proof of death, we will reinstate these

appeals and then dismiss them as moot. If counsel is unable to obtain proof of death within 60

days, counsel is instructed to file a status report with this Court explaining the delay.

               It is so ordered December 22, 2023.



Before Justices Baker, Triana, and Smith

Abated

Filed: December 22, 2023

Do Not Publish




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