IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,888

BOBBY RAY HOPKINS, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL

FROM JOHNSON COUNTY

Keller, P.J., delivered the opinion for a unanimous Court.

O P I N I O N

Appellant was convicted of capital murder and sentenced to death. ⁽¹⁾ This Court affirmed the conviction on direct appeal and denied his application for writ of habeas corpus. ⁽²⁾ Appellant subsequently filed a motion for DNA testing. ⁽³⁾ The trial court denied the motion on January 23, 2004, and appellant appealed that denial on January 26, 2004. ⁽⁴⁾ On February 10, 2004, appellant filed with this Court a motion for stay of execution, which we denied on February 12, 2004. Appellant was executed on February 12, 2004.

Because appellant has been executed, his motion for DNA testing is now moot. And because appellant's conviction is final, the proper disposition is to dismiss the appeal. ⁽⁵⁾ Consequently, this appeal is dismissed.

KELLER, Presiding Judge

Date delivered: June 23, 2004

Do Not Publish

1. TEX. PEN. CODE §19.03(a).

2. TEX. CODE CRIM. PROC., Art. 37.071, §2(h) & Art. 11.071. All references to articles are to the Texas Code of Criminal Procedure unless otherwise indicated.

3. Art. 64.01, et seq.

4. Art. 64.05.

5. State v. McCaffrey, 76 S.W.3d 392, 393 (Tex. Crim. App. 2002)(where rationale for permanent abatement does not apply, appeal should be dismissed; rationale for permanent abatement applies when judgment is not yet final due to pending appeal); Ex Parte Cruz, 946 S.W.2d 347 (1997)(dismissal appropriate action after death during pendency of application for writ of habeas corpus).