Joe Hutchins v. The State of Texas--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-93-155-CR

JOE HUTCHINS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 93-015-CR

O P I N I O N

A jury found Joe Hutchins guilty of escape and the court, after finding two enhancement paragraphs true, assessed punishment of thirty years' imprisonment. See Tex. Penal Code Ann. 38.07 (Vernon 1989) (current version at Tex. Penal Code Ann. 38.06 (Vernon 1994)). In his first point, Hutchins claims that there is a fatal variance between the proof and the indictment. In point two he contends the evidence is insufficient to support his conviction. Because we sustain point two, we will reverse and render a judgment of acquittal.

In resolving the sufficiency-of-the-evidence issue, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988); Mattias v. State, 731 S.W.2d 936, 939-40 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 831, 109 S. Ct. 86, 102 L. Ed. 2d 62 (1988). The jury is entitled to reject the defensive evidence and credit the state's version of events. Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989). However, the jury is only authorized to convict upon the theory contained in the charge. See Deltenre v. State, 808 S.W.2d 97, 99 (Tex. Crim. App. 1991). Thus, we must measure the evidence with the rational-trier-of-fact standard against the instructions in the charge. See Arceneaux v. State, 803 S.W.2d 267, 269-70 (Tex. Crim. App. 1990).

Viewed in the light most favorable to the State, the evidence establishes that on February 4, 1993, Hutchins left the Boyd Unit of the Texas prison system in Freestone County on temporary furlough. See Tex. Gov't Code Ann. 501.006 (Vernon Supp. 1994). He was to return at 4:00 p.m. on February 10. Although Hutchins did not return to the prison by that time, he telephoned and spoke with the prison warden, who gave him an extension of the furlough until 9:00 p.m. February 10. When Hutchins failed to return at the agreed time, Assistant Warden William Maggard and Captain Matthew Graham went to Dallas to find him. Ultimately, they found Hutchins at approximately 6:30 a.m. on February 11 outside a 7-11 convenience store. When Maggard ordered Hutchins into the car, he replied, "I'm not going back with you," jumped a fence and ran away. With the assistance of several Dallas police officers, Graham successfully apprehended Hutchins three hours later and returned him to the Boyd Unit.

The State indicted Hutchins for escape. See Tex. Penal Code Ann. 38.07. This section provides:

(a) A person commits an offense if he escapes from custody when he is:

(1) under arrest for, charged with, or convicted of an offense; or

(2) in custody pursuant to a lawful order of a court.

Id. "Escape" is defined as "unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose or for a limited period . . . ." Id. 38.01(3) (Vernon Supp. 1994) (current version at Tex. Penal Code Ann. 38.01(2) (Vernon 1994)).

The court's charge instructed the jury that:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 10th day of February, 1993, in Freestone County, Texas, the defendant, Joe Hutchins, did then and there intentionally and knowingly escape by unauthorized departure from the custody of Jerry Gunnels, namely Warden of the William Boyd Jr. Unit of the Institutional Division of the Texas Department of Criminal Justice, a public servant, who was acting pursuant to an order of a court . . . then you will find the defendant guilty as charged.

. . .

If the defendant's departure was authorized, he would not be guilty of the offense of escape. The term "unauthorized departure" is not defined in this charge, however, the term is to be given its commonly understood and ordinary meaning. There was evidence presented by the State that defendant was granted a furlough in this case. If you find from the evidence that defendant's departure was authorized, or if you have a reasonable doubt as to whether defendant's departure was authorized, you will find the defendant not guilty.

(Emphasis added).

Examining the charge, we conclude that the jury was authorized to convict Hutchins only if it found that (1) on or about February 10, 1993, (2) in Freestone County, (3) he intentionally and knowingly, (4) escaped by unauthorized departure, (5) from the custody of the warden of the Boyd Unit.

The only evidence produced by the State relating to Hutchins' departure showed that he left the Boyd Unit under an approved furlough. There is absolutely no evidence to show that he left the Boyd Unit in Freestone County under any other circumstances. Thus, we conclude that no rational trier of fact could have found that Hutchins departed from the custody of the warden of the Boyd Unit in Freestone County without authorization. See Arceneaux, 803 S.W.2d at 269-70.

The State argues that Hutchins' legal status remained the same regardless of where he was physically located, citing Harrell v. State, 743 S.W.2d 229, 231 (Tex. Crim. App. 1987), and Martin v. State, 654 S.W.2d 473 (Tex. App. Waco 1982), rev'd on other grounds, 652 S.W.2d 777 (Tex. Crim. App. 1983). Thus, according to the State, he was in "constructive custody" when he was on furlough, and he departed from that custody without authority when he failed to return to the Boyd Unit. See Lawhorn v. State, 843 S.W.2d 268, 271 n.1 (Tex. App. Austin 1992, pet. granted) (Powers, J., dissenting). We believe that this argument is flawed. Under the State's "constructive custody" theory, there could never be an escape from "custody." See id. at 270 (majority opinion). The State fails to explain how Hutchins' legal status changed when he unilaterally "extended" his furlough. Presumably, focusing on his legal status, he would remain in "constructive custody" the entire time he was missing from the Boyd Unit. Thus, he would have never "escaped" from that custody.

Point two is sustained. Due to this disposition, we do not address point one. The judgment is reversed and a judgment of acquittal rendered. See Tex. R. App. P. 80(b).

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and acquittal rendered

Opinion delivered and filed October 26, 1994

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