Opinion
No. 05-03-01772-CR
Opinion Filed May 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F03-00824-VW. Dismissed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
Billy Wayne Williams was convicted of aggravated assault causing serious bodily injury. See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon Supp. 2004). During the pendency of the guilt/innocence phase, appellant absconded. The trial court thereafter held appellant's bond insufficient. The trial proceeded in appellant's absence and the jury returned a guilty verdict. The punishment phase was conducted before the judge, who sentenced appellant in absentia to life imprisonment. Appellant's trial attorney filed a notice of appeal on appellant's behalf. In reviewing the record and appellant's brief, we noted that it appears appellant is still at large. Therefore, we questioned whether the appeal should continue. Appellant's attorney filed a letter brief conceding that if the State filed a motion to dismiss, the appeal should be dismissed pursuant to rule 42.4. The State has filed a motion to dismiss, accompanied by an affidavit, and a letter brief, asking that the appeal be dismissed. We conclude the appeal should be dismissed. Rule 42.4 provides:
The 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. If an appellant receives a life sentence, the appellate court may deny the motion to dismiss if the appellant is recaptured or voluntarily surrenders within thirty days after sentencing. See Tex.R.App.P. 42.4(b). Escape for purposes of rule 42.4 has been interpreted to include the commonly-accepted meaning of the word, one of which is "an unauthorized departure from custody." See Ike v. State, 998 S.W.2d 323, 324 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (citing Luciano v. State, 906 S.W.2d 523, 524-25 (Tex.Crim. App. 1995)). The term "custody" is "very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisonment or taking manual possession." Luciano, 906 S.W.2d at 525 (quoting Black's Law Dictionary 384 (6th ed. (1990)). The definition is broad enough to encompass restraint by a legal order. See id. When a person is released on bond, his liberties are restrained. Ike, 998 S.W.2d at 324. In the case before us, appellant was released on bond and remained on bond at the time he disappeared; thus his liberties were restrained. See id. The trial court judge held appellant's bond insufficient, which shows she did not approve of his disappearance. See id. The State has filed a motion to dismiss, supported by an affidavit that states appellant escaped during the pendency of the proceedings, he has not been recaptured, and he did not voluntarily surrender within thirty days of the date of his escape. See Tex.R.App.P. 42.4(b). Thus, we conclude appellant escaped from custody for purposes of rule 42.4. See id. We grant the State's motion to dismiss and dismiss the appeal.