Sean Garison McNerthney v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
SEAN GARISON MCNERTHNEY, § No. 08-23-00012-CR
Appellant, § Appeal from the
v. § 226th Judicial District Court
THE STATE OF TEXAS, § of Bexar County, Texas
Appellee. § (TC# 2020CR11691)
MEMORANDUM OPINION
A jury found Appellant Sean Garison McNerthney guilty of assault causing bodily injury
against a family member (second offense) and assessed a punishment of imprisonment for three
years and six months. After Appellant filed his notice of appeal challenging his conviction, the
State filed a motion to dismiss the appeal pursuant to Rule 42.4 of the Texas Rules of Appellate
Procedure because Appellant escaped from custody. See TEX. R. APP. P. 42.4. No response to the
State’s motion has been filed and Appellant has not otherwise opposed the motion. For the
following reasons, we grant the motion and dismiss the appeal. 1
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This case was transferred from our sister court in San Antonio, and we decide it in accordance with the precedent of
that court to the extent required by TEX. R. APP. P. 41.3.
Rule 42.4 states that we “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.” Id. When determining whether an appellant has “escaped” under
Rule 42.4, we apply the term’s commonly accepted meaning. Hayes v. State, No. 14-20-00580-
CR, 2020 WL 6278598, at *1 (Tex. App.—Houston [14th Dist.] Oct. 27, 2020, no pet.) (mem. op.,
not designated for publication) (per curiam) (citing Luciano v. State, 906 S.W.2d 523, 524–25
(Tex. Crim. App. 1995)). “Custody” means “actual physical detention or imprisonment, as well as
the power to actually imprison or take into physical possession.” Id. (citing Luciano, 906 S.W.2d
524–25). “Implicit within each example [of custody] is the notion that the individual is not free to
exercise his liberty or that his liberties are being restrained via legal process.” Id. (citing Porras v.
State, 966 S.W.2d 764, 765 (Tex. App.—Amarillo 1998, no pet.)). To that end, a defendant who
has been released on bond is considered to have his liberties restrained. Id. (citing Ex parte
Robinson, 641 S.W.2d 552, 553–54 (Tex. Crim. App. 1982)).
Here, the record indicates that Appellant, having been on bond during the trial, absconded
after the parties completed their voir dire examinations. According to the State’s two affidavits
filed in support of its motion to dismiss, the trial court subsequently issued a warrant for
Appellant’s arrest on December 8, 2022. The affidavits state that Appellant is currently located at
the Hennepin County Jail in Minnesota and that he has not voluntarily returned to lawful custody
in the State of Texas within ten days of escaping from custody. Because Appellant was on bond
when he absconded, his liberties were restrained and he was in custody as contemplated by Rule
42.4. See TEX. R. APP. 42.4; Hayes, 2020 WL 6278598, at *1 (defendant who was on bond at the
time of escaping was in custody under Rule 42.4). And because the affidavits state that Appellant
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has not voluntarily returned to lawful custody in Texas within ten days, he has escaped for purposes
of Rule 42.4. See Hayes, 2020 WL 6278598, at *1 (defendant who failed to appear for court
appearance while on bond escaped under Rule 42.4).
For these reasons, we conclude that Appellant has escaped from custody under Rule 42.4
and has not voluntarily returned to lawful State custody within ten days of escaping. We therefore
grant the State’s motion to dismiss the appeal.
LISA J. SOTO, Justice
June 22, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
(Do Not Publish)
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