Carl Batiste v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-07-248 CR ____________________

CARL BATISTE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 05-10-08801-CR

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MEMORANDUM OPINION

Carl Batiste absconded during trial on an indictment for enhanced second degree felony possession of a controlled substance. The jury assessed punishment at seventy-five years of imprisonment and a $10,000 fine. The trial court entered a written judgment and defense counsel filed a notice of appeal before withdrawing from the case. By letter filed with the notice of appeal, appellant's counsel informed this Court that Batiste had been convicted in absentia after leaving during a recess. We dismiss the appeal for lack of jurisdiction.

The appellate timetables commence when the defendant is sentenced in open court. A notice of appeal filed after verdict but before sentencing is deemed filed on the same day, but after, sentence is imposed. Tex. R. App. P. 27.1(b). In this case, however, the defendant has absconded and has not returned to custody. Until he is sentenced in open court, jurisdiction remains in the trial court. See Tex. R. App. P. 26.2(a), 27.1(b); see also Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). ⁽¹⁾ The appeal is dismissed.

APPEAL DISMISSED.

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DAVID GAULTNEY

Justice

Opinion Delivered August 29, 2007

Do Not Publish

Before Gaultney, Kreger, & Horton, JJ.

1. The notice of appeal may be processed, in accordance with Rule 27.1(b), once sentencing triggers the appellate timetables.