Jacob Gross v. State

NO. 07-03-0484-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 12, 2003
______________________________
JACOB GROSS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 110TH DISTRICT COURT OF FLOYD COUNTY;
NO. 4137; HON. JOHN R. HOLLUMS, PRESIDING
_______________________________
Order
_______________________________
Before QUINN, REAVIS, and CAMPBELL, JJ.
Pending before the court is a motion by the State of Texas asking that we dismiss
the appeal of Jacob Gross (Gross). It believed itself entitled to such relief because Gross
purportedly escaped after perfecting his appeal. We overrule the motion without prejudice.
According to Texas Rule of Appellate Procedure 42.4, we must dismiss an appeal
on the State’s motion, supported by affidavit, showing that the appellant escaped from
custody pending the appeal and that he has not voluntarily returned to lawful custody within
ten days. Attached to the State’s motion at bar is the affidavit of Billy R. Gilmore (Gilmore),
Sheriff of Floyd County, Texas. In it, he represents that appellant was convicted and
remanded to the custody of the State on October 15, 2003. So too does the sheriff state
that appellant escaped from custody on November 2, 2003, though he was subsequently
recaptured later that same day. The State also accompanied its motion with two
documents purporting to evince appellant’s desire to appeal and which were purportedly
sent to the trial court. Each document contains a notation indicating that it was received
on a particular date. The date mentioned on one is October 17, 2003 and on the other,
October 30, 2003. Yet, who placed the notations on them and when he or she did so goes
unmentioned. Similarly unmentioned is whether the trial court or court clerk received them
or whether the copies sent were obtained from the trial court or court clerk. Nor is the
authenticity of either document, or the notation thereon, established by affidavit or
certification. Thus, while appellant may have escaped, the record at this time prevents us
from determining whether he did so “pending appeal.” See Ortiz v. State, 862 S.W.2d 170,
172 (Tex. App.--San Antonio 1993, no writ) (stating that the rule does not apply when a
defendant escapes when no appeal is pending).
Next, appellant has requested that we appoint him an attorney. Accordingly, we
abate this appeal and remand the cause to the 110th District Court of Floyd County (trial
court) for further proceedings. Upon remand, the trial court shall immediately cause notice
of a hearing to be given and, thereafter, conduct a hearing to determine the following:
1. whether appellant is indigent; and,
2. whether the appellant is entitled to a free appellate record and to
appointed counsel on appeal due to his indigency.
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The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings
of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed
a supplemental clerk’s record containing its findings of fact and conclusions of law and all
orders it may issue as a result of its hearing on this matter, and 3) cause to be developed
a reporter’s record transcribing the evidence and arguments presented at the
aforementioned hearing. Additionally, the district court shall file the supplemental record
with the clerk of this court on or before January 12, 2004. Should further time be needed
by the trial court to perform these tasks, it must be requested before January 12, 2004.
Finally, if the trial court determines that appellant is entitled to appointed counsel and has
none, it must appoint counsel to appellant and include in its findings of fact and
conclusions of law the name, address, and state bar number of the counsel it appoints.
It is so ordered.
Per Curiam
Do not publish.
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