Marylou Heredia v. State

Opinion filed February 27, 2014
In The
Eleventh Court of Appeals
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No. 11-13-00324-CR
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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.
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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.
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