Anderson, Michael Carson v. The State of Texas--Appeal from 263rd District Court of Harris County

Dismissed and Opinion filed September 12, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00421-CR

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MICHAEL CARSON ANDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 860,959

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment adjudicating guilt for aggravated assault. On March 15, 2002, appellant was sentenced to six years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal to challenge the sentence imposed.

On June 10, 2002, time to file appellant=s brief expired without a brief, and no motion for extension of time was filed. See Tex. R. App. P. 38.6(a). Appellant and the trial court were notified on June 19, 2002 that no brief had been received. No response was filed. Accordingly, on July 11, 2002, this Court directed the trial court to conduct a hearing to determine no brief had been filed. See Tex. R. App. P. 38.8(b). On August 12, 2002, the trial court conducted the required hearing. At the hearing, the attorney for the State informed the court that appellant had been transferred to Montgomery County where additional charges were pending. When those charges were dismissed, appellant was inadvertently released instead of returned to custody in Harris County or sent to the Institutional Division of the Texas Department of Criminal Justice to begin serving his sentence. The prosecutor informed the court that appellant=s whereabouts are unknown and several attempts to execute a warrant to return him to custody have been unsuccessful.

On August 22, 2002, the State filed a motion to dismiss the appeal because appellant has escaped from custody. See Tex. R. App. P. 42.4 (requiring dismissal of appeal when appellant has escaped from custody and has not voluntarily returned to lawful custody within ten days). The verified motion states that appellant has been released from custody, and he has not returned to begin serving his sentence in this case. Several attempts to locate appellant have been made and he cannot be found. Accordingly, he has effectively escaped from custody for purposes of Rule 42.4 of the Texas Rules of Appellate Procedure. The facts that he was sentenced to imprisonment for six years on March 15, 2002, released from custody two months later on May 18, 2002, he has not turned himself in and cannot be located all demonstrate that appellant is aware that his departure from custody was not authorized. See Estep v. State, 901 S.W.2d 491, 495 (Tex. Crim. App. 1995) (determination of Aescape@ requires showing, usually by setting out circumstances of departure, that appellant departed from custody with awareness departure was not authorized); see also Ike v. State, 998 S.W.2d 323, 324 (Tex. App.CHouston [1st Dist.] 1999, no pet) (defendant=s disappearance while out on bond established Aescape@); Porras v. State, 966 S.W.2d 764, 765 (Tex. App.CAmarillo 1998, no pet.) (same).

No response to the motion to dismiss has been filed. Accordingly, we grant the State=s motion, and the appeal is ordered dismissed. See Tex. R. App. P. 42.4.

PER CURIAM

Judgment rendered and Opinion filed September 12, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).