Thomas Paine Hayes, IV v. State

Motion Granted; Appeal Dismissed and Majority Memorandum Opinion filed
October 27, 2020
In The
Fourteenth Court of Appeals
NO. 14-20-00580-CR
THOMAS PAINE HAYES, IV, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 25th District Court
Colorado County, Texas
Trial Court Cause No. CR17-124
MEMORANDUM OPINION
Pending before this court is the State’s motion to dismiss this appeal. The
State argues that dismissal is warranted under Texas Rule of Appellate Procedure
42.4. We grant the motion and dismiss the appeal.
Rule 42.4 provides 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.” Tex. R. App. P. 42.4. In determining whether appellant has escaped for
purposes of Rule 42.4, we do not necessarily apply the definition under the Texas
Penal Code, but rather apply the term’s “commonly-accepted meaning.” Luciano v.
State, 906 S.W.2d 523, 524–25 (Tex. Crim. App. 1995); Porras v. State, 966
S.W.2d 764, 765 (Tex. App.—Amarillo 1998, no pet.). One commonly-accepted
meaning of escape is an unauthorized departure from custody. Luciano, 906
S.W.2d at 524. The term “custody” includes actual physical detention or
imprisonment, as well as the power to actually imprison or take into physical
possession. Id. at 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.” Porras, 966 S.W.2d at 765. When an individual is
released on bond, his liberties are restrained. Ex parte Robinson, 641 S.W.2d 552,
553–54 (Tex. Crim. App. 1982).
In the present case, appellant was adjudicated guilty and sentenced to prison
for four years. He was released on bond and ordered to report on July 24, 2020, to
begin serving his sentence. Appellant failed to appear. An arrest warrant for “Bond
Jumping Failure to Appear” issued August 7, 2020. Because apppellant was on
bond at the time, appellant’s liberties were restrained. We therefore conclude that
appellant escaped from custody for purposes of Rule 42.4. See Porras, 966 S.W.2d
at 765 (appeal dismissed where affidavit stated defendant disappeared while appeal
was pending, bond was surrendered, and warrant for arrest issued); see also Ike v.
State, 998 S.W.2d 323, 324 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (appeal
dismissed where affidavit stated defendant did not appear for sentencing and bond
was forfeited).
No response to the motion to dismiss has been filed Nor has appellant
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otherwise opposed the State’s motion to dismiss the appeal. We grant the State’s
motion and dismiss the appeal.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Wise and Bourliot. (Bourliot, J.,
concurs without opinion.)
Do Not Publish — Tex. R. App. P. 47.2(b).
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