Opinion
No. 05-06-00556-CR
Opinion Filed July 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 20203. Dismiss.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
Jecia Javette Moss was convicted of aggravated assault. Punishment was assessed at twelve years' imprisonment and a $1500 fine and was pronounced on April 5, 2006. The trial court allowed appellant to remain at large until April 17, 2006, when she was to report to the Kaufman County Sheriff's Office. Appellant filed her notice of appeal on April 12, 2006. We now have before us the State's July 10, 2006 motion to dismiss the appeal because appellant escaped from custody during the pendency of the appeal. In the motion, which is accompanied by an affidavit, the State asserts appellant did not surrender herself to the Kaufman County Sheriff and remains at large. The State also states that the trial court has issued a capias for appellant's arrest. The State asks that we dismiss the appeal pursuant to rule of appellate procedure 42.4. Appellant did not respond to the motion. Rule 42.4 provides that "an appellate court must dismiss an appeal on the State's motion, supported by affidavit, showing that the appellant has escaped from custody pending the appeal and that to the affiant's knowledge, the appellant has not, within ten days after escaping, voluntarily returned to lawful custody within the state." Tex.R.App.P. 42.4. The meaning of escape under rule 42.4 is not limited to the penal code definition of escape. See Luciano v. State, 906 S.W.2d 523, 524 (Tex.Crim.App. 1995). Moreover, the concept of custody is elastic and includes both actual imprisonment or physical detention or mere power, legal or physical, of imprisonment or of taking manual possession. See id. at 525. Escape has been held to include an unauthorized departure from a community corrections facility and absconding while released on appeal bond. See, e.g., id. at 526; Porras v. State, 966 S.W.2d 764, 765 (Tex.App.-Amarillo 1998, no pet.). In this case, appellant was allowed to remain at large under the restriction that she surrender herself to the Kaufman County Sheriff on a specified date. Appellant did not surrender herself as ordered. Therefore, we conclude she has escaped from custody within the meaning of rule 42.4. See Luciano, 906 S.W.2d at 524-25; Porras, 966 S.W.2d at 764. We grant the State's motion to dismiss. We dismiss the appeal. See Tex.R.App.P. 42.4.
Because appellant's sentence was twelve years, she was not entitled to an appeal bond. See Tex. Code Crim. Proc. Ann. art. 44.04(b) (Vernon Supp. 2005) (no release on appeal bond where sentence equals or exceeds ten years' imprisonment).