Bill Lawhorn, Jr. v. State ( 1992 )

Lawhorn v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-91-106-CR





BILL LAWHORN, JR.,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 101,676, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

A jury found Bill Lawhorn, appellant, guilty of burglary of a habitation with intent to commit felony escape; the jury assessed punishment, enhanced by a previous felony conviction, at imprisonment for thirty years. Tex. Penal Code Ann. § 30.02 (West 1989). On appeal, appellant challenges the legal sufficiency of the evidence to support the conviction. We will reverse the conviction and order an acquittal.

Appellant was arrested for aggravated sexual assault on December 22, 1989. About a month after his arrest for that offense, Travis County Sheriff's Deputy Julie Waddle was assigned to transport appellant, along with one other inmate, from the City of Austin jail to the Travis County jail. As they arrived at the county jail in a Sheriff's Department van at approximately 9:30 p.m., appellant, in handcuffs, fled on foot. Deputy Waddle pulled her gun and ordered appellant to stop, but decided not to shoot. She chased him a short distance while radioing for assistance, but she soon lost sight of him and gave up the chase. Confident that other officers would look for appellant, Deputy Waddle returned to her van to finish transporting the other prisoner and had no significant role in appellant's subsequent apprehension.

About a block from the county jail, appellant ran past a car driven by an off-duty sheriff's deputy, Lieutenant Hal Caldwell. From the jail uniform and handcuffs, Caldwell recognized appellant as an escaped inmate. Caldwell followed appellant in his car for about half a block until appellant ran into the courtyard of the Regency Apartments, where Caldwell both lived and worked as a security guard. Caldwell pulled his gun and ordered appellant to stop, but he, like Deputy Waddle, decided not to shoot. Caldwell then ran up the sidewalk on the outside of the complex and took a position on the San Antonio Street side of the complex, waiting to see if appellant would scale the six-foot fence on that side. About that time, Caldwell heard the sound of breaking glass inside the complex. Caldwell waited there, but appellant did not come over the fence. A short time later, three or four jail officers arrived, and Caldwell positioned them around the perimeter of the apartment complex. Shortly after that, officers from the Austin Police Department began to arrive. Within a matter of minutes, appellant was found lying on the kitchen floor in apartment 114, which he had entered by breaking a window. The entire episode lasted only twenty or twenty-five minutes. Mary Savala, the occupant of the apartment, testified that she did not give appellant consent to enter her apartment.

A person commits an offense if he escapes from custody when he is under arrest. Tex. Penal Code Ann. § 38.07(a)(1) (West 1989). The offense is a felony if the offense for which he is under arrest is a felony. Id. § 38.07(c)(1). "Custody" means detained or under arrest by a peace officer; "escape" means unauthorized departure from custody. Tex. Penal Code Ann. § 38.01(2), (3) (West Supp. 1992).

In the present case, the trial court charged the jury that, to convict appellant of burglary, they were required to find beyond a reasonable doubt that he "intentionally or knowingly enter[ed] a habitation without the effective consent of Mary Savala, the owner, with intent to commit the felony of escape from custody, in that the said defendant had been arrested for a felony, to wit: aggravated sexual assault." The charge also included this instruction:

Now if you believe from the evidence that the Defendant on the occasion in question had already committed the offense of felony escape before he entered the habitation of Mary Zavala [sic], if he did, or if you have a reasonable doubt thereof you can not convict the Defendant of Burglary of a Habitation with intent to commit felony escape, but you will consider whether the Defendant is guilty of Felony Escape.

In his first point of error, appellant contends the State failed to prove that he entered Savala's apartment with the requisite intent. We agree.

Appellant left Deputy Waddle's custody when he ran from the van or, at the very latest, when Waddle gave up the chase and returned to the van containing her other prisoner. See Casey v. State, 681 S.W.2d 178 (Tex. App.Houston [14th Dist.] 1984, pet. ref'd). The offense was complete at that point. The Court of Criminal Appeals has noted that escape is not a continuing offense. Fitzgerald v. State, 782 S.W.2d 876, 881 n.9 (Tex. Crim. App. 1990). Thus, appellant could not still have been in the process of escaping when he broke into Savala's apartment and, as a matter of law, he could not have "intended" to commit the offense of escape when he entered the apartment. Appellant may have entered the apartment with the intent to resist or evade arrest, Tex. Penal Code Ann. §§ 38.03, .04 (West 1989 & Supp. 1992), but the evidence is conclusive that he did not commit the offense of burglary with intent to commit felony escape, because he had already completed the offense of escape.

For example, the present case contains far stronger evidence of a completed escape than in Scott v. State, 672 S.W.2d 465 (Tex. Crim. App. 1984), in which a conviction for escape was affirmed. In Scott, Taylor County jail authorities set up a surveillance as a result of having been informed of a planned escape from the jail. At the predicted time, the defendant emerged from a hole he had dug through or under one of the walls of the jail building. The defendant's passage through the hole placed him in a fenced, but unlocked, yard area within the jail facilities, where he was promptly arrested by the heedful authorities. The defendant contended that he had never departed from custody and, therefore, had not completed his escape. The court rejected this argument:

[W]hile the yard was part of the Taylor County jail facilities, inmates were not allowed to leave the building at any time unless accompanied by a deputy. The fenced yard was not part of a trustee's assigned area. Appellant completed the offense of escape when he dug out of the building. The walls of the jail building itself were the bounds of appellant's detention and custody. Once he violated this boundary appellant was no longer in the custody of the sheriff's office even though he was under surveillance by a deputy.

672 S.W.2d at 466 (emphasis added); see also Annotation, Conviction for Escape Where Prisoner Fails to Leave Confines of Prison or Institution, 79 A.L.R. 4th 1060 (1991).

It is certainly true that "actual, physical ``hands-on' restraint is not a prerequisite to a showing of custody in the context of the offense of escape." Harrell v. State, 743 S.W.2d 229, 231 (Tex. Crim. App. 1987); accord Gilbert v. State, 787 S.W.2d 233, 236 (Tex. App.Fort Worth 1990, no pet.). The term "custody" clearly implies, however, a degree of physical limitation, restraint, or control; if it meant merely a legal "right" to control, as the dissent seems to argue, then there could never be an escape from custody.

The nature and scope of the physical limitation of custody depends on the facts of each case:

What constitutes a departure from custody, within the meaning of this rule, depends on the circumstances of the particular confinement. Thus, a prisoner may be guilty of an actual departure, and escape, merely by leaving his cell, or some other area, or by going outside the prison walls, even though he does not leave prison property, or by leaving his jail through an unlocked door.

30A C.J.S. Escape § 5(b), at 403 (1992). Thus, the inmate in Scott was physically confined to the walls of the prison building; such a tangible barrier generally provides an easy definition of the physical limits of a prisoner's custody. Cf. Fitzgerald, 782 S.W.2d at 879 ("Appellant . . . committed the felony offense of escape by moving beyond bounds of Beto II Unit without authority and his offense was complete at that point. . . . In every statutory sense, then, the moment he was outside confines of the penitentiary his escape was a fait accompli.").

In other circumstances, the line of demarcation is less clear, but the existence of some physical limitation is no less real. In Harrell, for example, the defendant was convicted of escape for leaving the V.A. hospital where, after his arrest, he had been left unguarded. It is not clear whether the physical limitation of the defendant's custody confined him to his hospital room, or to the entire floor that his room was on, or perhaps to all of the hospital grounds. What is obvious, however, is that there was some physical limit beyond which he was not permitted to go. The court in Harrell did not need to address the precise scope of the physical limitation of his custody, because the prisoner had fled beyond the furthest conceivable limit. Cf. Webb v. State, 533 S.W.2d 780, 787-88 (Tex. Crim. App. 1976) (defendant who was assigned to paint offices in county courthouse climbed out sixth-story window and was found with broken leg on third-story roof); Casey, 681 S.W.2d at 180-81 (defendant who fled courtroom after judge ordered him taken into custody was apprehended twenty feet outside courtroom door).

Likewise, in the present case, there was no clearly defined boundary of appellant's custody while Deputy Waddle was escorting him from the Sheriff's Department van to the county jail. We do not need, however, to determine at what precise point appellant's departure from Deputy Waddle's custody was complete. Appellant fled beyond her reach, out of her sight, and even beyond her pursuit; he fled off county property, over public streets, and into a private apartment complex. As in Harrell, whatever the furthest extent of the physical limit of appellant's custody might have been, he had clearly exceeded it by the time he broke into Savala's apartment.

This inescapable conclusion is supported not only by the undisputed facts, but also by direct admissions of the State's witnesses themselves. Deputy Waddle testified as follows:

Q: I believe that you testified that you opened the sliding door of this van.

A: Yes, I did.

Q: And that Mr. Lawhorn got out and started walking towards, I suppose, where he was supposed to go.

A: He started.

Q: And then he broke and ran?

A: Yes, he did.

Q: And at that point did he leave your custody?

A: Yes, he did.

Q: There's no doubt in your mind about that?

A: No, there is not.

Q: And the only time that he reentered your custody was when?

A: Was when he was later apprehended inside the lady's apartment, Apartment 114. Then that's when I went in and we took him back to the jail.

Q: So it is your testimony that Mr. Lawhorn had indeed escaped from you. Is that correct?

A: Yes, sir.

Q: There's no doubt about that, is there?

A: No.

Caldwell testified as follows:

Q: Mr. Caldwell, when you first saw Bill Lawhorn, the person later found to be Bill Lawhorn, running, was he in custody or out of custody?

A: I would say that he was out of custody.

The difficulty in this case, it seems to us, is that there is a lay meaning of the term "escape" that is much broader and less exact than the legal definition of the offense. Under the lay meaning, a fleeing prisoner might not be considered to have truly "escaped" until he had successfully eluded his pursuers for some indeterminate period of time. Until then, under the lay interpretation, the prisoner would still be in the process of escaping. Thus, under this definition, anything a fugitive did during this indeterminate "escaping" period in an effort to "get away" could be said to have been done with the intent of completing his escape.

The offense of escape, on the other hand, is defined more precisely: an unauthorized departure from custody. As is obvious from the cases discussed above, the offense of escape may, as a legal proposition, be completed long before the fleeing prisoner has successfully "gotten away," in laymen's terms.

In the context of the present case, appellant has committed the offense of "burglary" only if he unlawfully entered Savala's apartment with intent to commit a felony offensespecifically, the felony offense of escape. Tex. Penal Code Ann. § 30.02(a)(1) (West 1989). In reviewing appellant's conviction, therefore, we have focused on the legal meaning of "escape," not the lay meaning.

We hold that the facts in this cause establish conclusively that appellant had completed a departure from custody before he entered Savala's apartment; accordingly, that issue was not a question of fact for the jury. Given the particular facts of this cause, even viewing the evidence in the light most favorable to the verdict, a rational trier of fact could not have found beyond a reasonable doubt that appellant's departure from custody was not yet complete when he broke into Savala's apartment and that he entered the apartment with the intent to commit the offense of escape. See Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant's first point of error is sustained. Because we sustain point of error one, we do not reach appellant's second point of error.

We reverse appellant's conviction and reform the judgment to reflect an acquittal.

J. Woodfin Jones, Justice

[Before Justices Powers, Jones and Kidd]

Reversed and Reformed

Filed: December 9, 1992

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