Pedro Cruz, Jr. v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00075-CR
PEDRO CRUZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2012-434,832, Honorable John J. "Trey" McClendon, Presiding
January 15, 2014
OPINION ON MOTION TO DISMISS
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Before us is a motion brought under appellate rule 42.4 by the State 1 seeking the
involuntary dismissal of the appeal of appellant Pedro Cruz on the ground that he
1
According to a certificate of service, the State’s motion for involuntary dismissal
of the appeal was served on Cruz’s court-appointed counsel on December 16, 2013.
We held the motion for ten days, but Cruz made no response. TEX. R. APP. P. 10.3(a).
escaped from custody and did not voluntarily return to custody within ten days. 2 Finding
the State’s proof insufficient, we will deny the motion.
Represented by retained counsel, Cruz entered an open plea of guilty to a
charge of driving while intoxicated, third offense or more, was convicted and sentenced
to six years’ confinement in prison.3 Cruz filed a notice of appeal. He also posted an
appeal bond4 dated February 27, 2013, and by order of the trial court signed April 9,
was released on conditions that included weekly reporting to the community supervision
department.
Still represented by retained counsel on appeal, Cruz’s brief was due May 22.
On his counsel’s motion, we extended this deadline until June 21. A brief was not filed
but on June 24 Cruz’s counsel filed a motion to withdraw from representation. 5 We
granted the motion by letter of July 18. The letter also notified Cruz that his appellate
brief was due on or before August 19. He did not file a brief.
Cruz was notified by an August 26 letter from the Court that his brief was past
due. The letter extended the deadline for filing the brief until September 5. Cruz
responded, mailing a pro se motion on September 4, in which he acknowledged our
August 26 letter and that his brief was due by September 5. He requested an extension
2
TEX. R. APP. P. 42.4.
3
TEX. PENAL CODE ANN. §§ 49.04; 49.09 (West Supp. 2013).
4
TEX. CODE CRIM. PROC. ANN. art. 44.04(a) (West 2006).
5
In his motion, counsel stated he could find no arguable appellate issue.
2
of the briefing deadline until October 4, stating, “Appellant intends to file a brief with or
without counsel.” We granted the requested extension.
When Cruz did not file a brief or a motion requesting a further extension of time,
we sent him a letter on October 14, giving him ten additional days to file his brief along
with the required motion for extension. Our letter also stated we would abate the appeal
and remand the case to the trial court without further notice if he failed to comply. In a
November 14 opinion, we abated and remanded the case for the trial court’s
consideration of Cruz’s appellate representation.
The trial court conducted a hearing on December 13. Having been arrested
earlier in the week for failure to comply with the reporting obligation of his appeal bond,
Cruz appeared at the hearing. At the end of the hearing, the State made the trial court
aware it intended to file a motion in this Court to dismiss the appeal. After the hearing,
the trial court appointed appellate counsel for Cruz.
The State filed its motion to dismiss shortly after the trial court’s hearing.
Attached to the State’s motion is an affidavit signed by a community supervision officer,
reciting that Cruz was obligated by the trial court’s order to report weekly to the
community supervision department’s pre-trial services office. Cruz was placed on the
officer’s caseload. According to the officer, Cruz failed to report from October 14, until
he was arrested on a bond surrender warrant on December 10. The officer adds that
he spoke with Cruz by telephone on November 6, “and explained to him that he needed
to report . . . .” Nevertheless, Cruz did not resume reporting.
3
Our chief consideration here is whether the affidavit demonstrates Cruz escaped
from custody. Appellate Rule 42.4 provides:
The 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.
TEX. R. APP. P. 42.4. It is said that the term “custody” is “very elastic,” meaning actual
imprisonment or physical detention or mere power, legal or physical, of imprisonment or
of taking manual possession. Luciano v. State, 906 S.W.2d 523, 524-525 (Tex. Crim.
App. 1995). In other words, it includes restraint of an individual’s liberty by legal order.
Id. at 525. The court in Luciano also determined the term “escape” in the context of
what is now appellate rule 42.4 is not limited to the Penal Code definition, and applied to
Luciano’s action of absconding from a community corrections facility in which he was
required to reside as a condition of his probation. Id. at 524-25. En route to its
conclusion Luciano had escaped from custody by absconding from the community
corrections facility, the court discussed the policies underlying the “escape-dismissal
provision.” Noting that the underlying policies include that of promoting the “dignified
operation” of an appellate court, the court stated that an individual escaping from
supervised confinement as a condition of probation infringed on the dignity of the
appellate courts to the same degree as one escaping from jail or prison confinement.
Id. at 525-26. The court further noted the difficulty an appellate court would have
enforcing an adverse judgment against the absconded appellant. Id. at 526. Courts
also have defined the term “escape” as getting “oneself free from confinement or
control.” Russell v. State, 90 S.W.3d 865, 870 (Tex. App.—San Antonio 2002, pet.
4
refused) (citing Estep v. State, 901 S.W.2d 491, 495 (Tex. Crim. App. 1995)). Based on
the rationale outlined in Luciano, we have applied appellate rule 42.4 to appellants who
absconded while released on appeal bond. Porras v. State, 966 S.W.2d 764, 765 (Tex.
App.—Amarillo 1998, no pet.); Oliver v. State, 07-11-00405-CR, 2012 Tex. App. LEXIS
3465 (Tex. App.—Amarillo May 2, 2012, no pet.) (mem. op. not designated for
publication) (applying Porras).
Weekly reporting to the community supervision office was a condition of Cruz’s
release during the pendency of his appeal. From the officer’s affidavit, we infer that for
several months he did so without problem. His release was subject to other conditions
also, including payment of a monthly supervision fee, submission to random urinalysis,
and abstention from driving. We are not shown whether Cruz violated any of these
additional conditions.
The evidence of Cruz’s escape from custody does not rise to the level presented
in other cases in which we have dismissed the appeal of an appellant released under an
appeal bond. In Porras, 966 S.W.2d at 765, we said the appellant “has disappeared,”
and “was on bond when he departed for places unknown.” In Oliver, the surety’s
affidavit showed Oliver “could not be located,” and his family was unable to find him;
other evidence showed he did not appear for a hearing in the trial court. 2012 Tex. App.
LEXIS 3465. The facts were similar in Luciano, 906 S.W.2d at 524, where the court
said “appellant absconded from his residence at the community corrections facility, his
whereabouts unknown to either the court or his appellate counsel.” See also Moss v.
State, No. 05-06-00556-CR, 2006 Tex. App. LEXIS 6470, at *2, 3 (Tex. App.—Dallas
July 25, 2006, no pet.) (mem. op., not designated for publication) (appellant did not
5
surrender to the sheriff’s office on the specific date required by the trial court “and
remain[ed] at large”); Anderson v. State, No. 14-02-00421-CR, 2002 Tex. App. LEXIS
6684, at *2 (Tex. App.—Houston [14th Dist.] Sept. 12, 2002, no pet.) (per curiam, mem.
op., not designated for publication) (prosecutor informed appellate court “appellant’s
whereabouts are unknown and several attempts to execute a warrant to return him to
custody have been unsuccessful”); Boyd v. State, 53 S.W.3d 432, 433 (Tex. App.—San
Antonio 2001, no pet.) (appellant’s release was conditioned on electronic monitoring;
court held when appellant “mailed her electronic monitoring system back to her
probation officer, this was a sufficient escape from custody to trigger the involuntary
dismissal provision of rule 42.4”); Cano v. State, No. 07-00-0272-CR, 2001 Tex. App.
LEXIS 1373, at *2, 4 (Tex. App.—Amarillo Mar. 1, 2001, no pet.) (not designated for
publication) (appellant failed to surrender to bondsman and “remain[ed] a fugitive”).
The affidavit supplied us in this case does not show Cruz departed for places
unknown, or could not be located. We are similarly unable to see in these facts the
challenge to the dignified operation of our court that is presented when an appellant
absents himself and places himself beyond the control of the court. Nor can we see
that Cruz’s failure to report, standing alone, shows we would have difficulty enforcing an
adverse judgment against him.
The signature block on Cruz’s September 4 motion for additional time contained
a Lubbock address.6 The community supervision officer reached Cruz by telephone on
6
We note also the conditions of appellant’s appeal bond did not include a
geographic limitation on his whereabouts.
6
November 6. After the warrant for his arrest was issued, Cruz was promptly arrested
the next day.
Although we are not directly informed of the causes of Cruz’s failure to report on
October 14 and following weeks, our own records show that his failure to report followed
his counsel’s failure to file a brief, our approval of his counsel’s withdrawal from
representation, Cruz’s subsequent failure to file a brief despite his expressed intention
to do so, and our contemporaneous notice of our intention to return the case to the trial
court if a brief was not filed.7 And, as noted, we did abate the appeal and remand the
case to the trial court on November 14.
We do not suggest Cruz’s failure to report was justified. He violated a condition
of his release, and has paid the price for that violation by his arrest on a bond surrender
warrant. But the consequence of failing to comply with the conditions of an appeal bond
is not our question. And we must guard against blurring the line between that
determination, properly made by the trial court, and the issue before us, whether we are
required by rule to dismiss Cruz’s appeal because he escaped from custody. We
conclude on these facts we are not required to dismiss his appeal.
Moreover, the actions of the trial court at its hearing on December 13, conducted
with Cruz present, have placed the appeal back on track. The trial court then
determined Cruz still desired to pursue his appeal, and was indigent and entitled to
appointed counsel. The court appointed counsel for the appeal.
7
The abatement and remand for a hearing were, of course, required by appellate
rule. TEX. R. APP. P. 38.8(b).
7
Finding the affidavit accompanying the State’s motion under rule 42.2 does not
support the mandatory dismissal of the appeal based on an escape from custody during
the pendency of the appeal, we deny the State’s motion.
Cruz’s appellate brief shall be filed within thirty days of the date of this opinion.
Per Curiam
Publish.
8