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Marylou Heredia v. State ( 2014 )


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  • Opinion filed February 27, 2014
    In The
    Eleventh Court of Appeals
    ____________
    No. 11-13-00324-CR
    ____________
    MARYLOU HEREDIA, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 385th District Court
    Midland County, Texas
    Trial Court Cause No. CR41306
    MEMORANDUM OPINION
    Appellant, Marylou Heredia, entered an open plea of guilty to the offense of
    theft by deception and a plea of true to the enhancement allegations. The trial
    court convicted Appellant and assessed her punishment at confinement for eight
    years. The State has filed in this court a motion to dismiss the appeal pursuant to
    Rule 42.4 of the Texas Rules of Appellate Procedure. TEX. R. APP. P. 42.4. We
    grant the State’s motion and dismiss this appeal.
    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.” The record in this case shows that Appellant was sentenced in open
    court on August 20, 2013, but that Appellant was released on a $20,000 appeal
    bond.    As a condition of the bond, Appellant was required to reside at her
    designated residence, to report in person weekly to pretrial services, and to report
    by phone once a week. Appellant has absconded and has not reported since before
    November 6, 2013. On December 5, 2013, the trial court revoked Appellant’s bail
    and ordered that a warrant be issued for her arrest. Although a warrant has been
    issued, authorities have been unable to locate Appellant. Among other documents
    attached to the State’s motion was the affidavit of an investigator for the district
    attorney’s office. The investigator contacted Appellant’s family, searched numer-
    ous databases, and determined that Appellant had not been in lawful custody in the
    State of Texas since November 3, 2013. Appellant’s counsel has also indicated to
    this court that Appellant “is currently an absconder.”
    The uncontroverted evidence before this court indicates that Appellant
    escaped from custody. See Luciano v. State, 
    906 S.W.2d 523
    (Tex. Crim. App.
    1995) (construing the term “custody” broadly to include not only actual physical
    restraint of a person, but also physical restraint of a person by legal order);
    Porras v. State, 
    966 S.W.2d 764
    (Tex. App.—Amarillo 1998, no pet.) (construing
    Rule 42.4 broadly to include situation where the appellant had absconded while out
    on bond).     Furthermore, as required by Rule 42.4, the State has shown that
    Appellant has not voluntarily returned to custody. Consequently, we “must” grant
    the State’s motion to dismiss pursuant to Rule 42.4.
    2
    The State’s motion is granted, and the appeal is dismissed.
    PER CURIAM
    February 27, 2014
    Do not publish. See TEX. R. APP. P. 47.2(b).
    Panel consists of: Wright, C.J.,
    Willson, J., and Bailey, J.
    3
    

Document Info

Docket Number: 11-13-00324-CR

Filed Date: 2/27/2014

Precedential Status: Precedential

Modified Date: 10/16/2015