                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00135-CR

TRENT ARCHIE,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 12th District Court
                              Walker County, Texas
                              Trial Court No. 22768


                                    OPINION


      Trent Archie was convicted of murder and sentenced to 40 years in prison. TEX.

PENAL CODE ANN. § 19.02 (West 2011). After we reversed the trial court’s judgment,

Archie was released on appeal bond. Before the Court of Criminal Appeals reviewed

our judgment and issued its opinion, Archie was incarcerated on other charges. The

Court of Criminal Appeals then reversed our judgment and remanded the case to us to

consider Archie’s remaining issue on appeal. After the Court of Criminal Appeals’

opinion was issued, however, Archie escaped from custody and was recaptured a few

days later. The State filed a motion to dismiss Archie’s appeal pursuant to Rule 42.4 of
the Texas Rules of Appellate Procedure. The State’s motion to dismiss Archie’s appeal

is granted.

                                       BACKGROUND

        On appeal, this Court reversed Archie’s conviction and remanded the case to the

trial court, concluding that the trial court abused its discretion by denying the

appellant's motion for a mistrial. Archie v. State, 311 S.W.3d 556, 561 (Tex. App.—Waco

2009). On the State Prosecuting Attorney’s petition for discretionary review, the Court

of Criminal Appeals held the trial court did not abuse its discretion in overruling

Archie’s motion for mistrial. Archie v. State, 340 S.W.3d 734, 742 (Tex. Crim. App. 2011).

The Court of Criminal Appeals’ opinion was issued on June 8, 2011.

        According to the Walker County Sheriff’s affidavit attached to the State’s motion

to dismiss, Archie escaped from the Walker County Jail on June 29, 2011 and was

apprehended in the morning hours of July 1, 2011 in Houston after a foot chase by law

enforcement personnel. The Sheriff also stated in the affidavit that Archie did not

voluntarily surrender.

        The Court of Criminal Appeal’s mandate issued on July 15, 2011, and the case

was returned to us on July 19, 2011.

                      INVOLUNTARY DISMISSAL IN CRIMINAL CASES

        Rule 42.4 of the Texas Rules of Appellate Procedure provides in part

        The appellate court must dismiss an appeal on the State's motion,
        supported by affidavit, showing that the appellant has escaped from

Archie v. State                                                                     Page 2
          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.

Appeal Pending

          In response to the State’s motion to dismiss, Archie first argues that we cannot

dismiss his appeal pursuant to Rule 42.4 because his appeal was not pending at the time

he escaped. Relying on the Court of Criminal Appeals’ opinion in Austell v. State and

this Court’s opinion in Marquez v. State, Archie contends that since the record had not

yet been returned to us from the Court of Criminal Appeals when Archie escaped and

returned to custody, his appeal was not pending as contemplate by the Rule. See Austell

v. State, 638 S.W.2d 888, 890 (Tex. Crim. App. 1982); Marquez v. State, 795 S.W.2d 346,

347 (Tex. App.—Waco 1990, no pet.).

          In Marquez, the notice of appeal was filed after the defendant had escaped, and

the record was filed with the appellate court after he had been involuntarily returned to

custody. Relying on the Court of Criminal Appeals’ opinion in Austell and the change

in the appellate rule, this Court held there was no appeal pending at the time of

Marquez’s escape, and thus Rule 60(b)1 did not apply. Marquez, 795 S.W.2d at 347.

          In Austell, the Court of Criminal Appeals was primarily concerned with a record

that had been destroyed because the trial court had dismissed the defendant’s appeal

when he had escaped. In reaching the conclusion that the defendant was not at fault for

1   Now Rule 42.4.
Archie v. State                                                                        Page 3
an incomplete record on appeal, the Court stated, “Even after an escape, the appellate

record must be sent to the appellate court so that it may dismiss the appeal. If the

appellant is back in custody when the record reaches the appellate court, the appeal will

not be dismissed, but will be treated regularly.” Austell, 638 S.W.2d at 890 (citations

omitted).

        The Court of Criminal Appeals in 1969 had previously reached the conclusion

that an appeal was not pending until the record was filed. McGee v. State, 445 S.W.2d

187 (Tex. Crim. App. 1969). In McGee, the Court explained that under the statute in

place at the time, the trial court retained jurisdiction of a criminal proceeding until the

appellate record was filed with the Court of Criminal Appeals. Id. at 190. At that time,

the trial court had a duty to decide from the appellate briefs whether the defendant

should be granted a new trial. Id. It did not lose this authority until the record was

filed with the reviewing court. Id. Thus, an appeal was not pending until the trial court

lost its authority to act.

        Today, the trial court still retains the authority to act in further proceedings until

the record has been filed in the appellate court. TEX. R. APP. P. 25.2(g); State v. Moore,

225 S.W.3d 556, 568 (Tex. Crim. App. 2007). Thus, the notion that an appeal is not

pending until the appellate record is filed may be good law if an escape occurs before

the record is filed initially in the reviewing court. But that is not the situation here. In

this case, the filing of the record was completed when the reporter’s record was filed on


Archie v. State                                                                         Page 4
May 1, 2008. From that date until today, an appeal has been pending as contemplated

by the rule. Archie escaped, however, after review of our judgment by the Court of

Criminal Appeals in 2011. By that time, the trial court had long since lost its authority

to act in the underlying case. Further, the appellate review of Archie’s case had not

been completed and some new process started with the review by the Court of Criminal

Appeals; it was a continuing process—an appellate process. Thus, Archie’s appeal was

pending when he escaped and the cases cited by him have no bearing on this appeal.

In Custody

        Archie also argues that dismissal is not appropriate because he was not “in

custody” pursuant to his murder conviction at the time he escaped. Archie contends

that he had been given an appeal bond and was in the Walker County Jail on an

unrelated drug charge when he escaped from jail. The State responds that Archie’s

appeal bond had been surrendered in March of 2011 and that Archie was re-arrested on

the murder charge that is the subject of this appeal. In support of this response, the

State attached certified copies of the order of surrender and the capias showing Archie’s

re-arrest on March 15, 2011.

        The commonly-accepted meaning of “custody” is very broad and encompasses

both the forceful, physical restraint of a suspect and the physical restraint of an

individual’s liberty by a legal order. Luciano v. State, 906 S.W.2d 523, 524-25 (Tex. Crim.

App. 1995). Being on bond restrains an appellant’s liberties. Porras v. State, 966 S.W.2d


Archie v. State                                                                      Page 5
764, 765 (Tex. App.—Amarillo 1998, no pet.). If Archie was on appeal bond at the time

of his escape, as Archie has alleged, he was not only physically restrained in jail on the

unrelated drug charge, but also his liberties were restrained under the legal order of an

appeal bond. Additionally, because Archie was actually in custody for the charge that

is the subject of this appeal at the time of his escape, Rule 42.4 applies. Thus, Archie

was “in custody” for the purposes of Rule 42.4 at the time he escaped.

                                           CONCLUSION

        Having determined that Archie’s appeal was pending when he escaped from

custody, we grant the State’s motion to dismiss.               Accordingly, Archie’s appeal is

dismissed. TEX. R. APP. P. 42.4.




                                               TOM GRAY
                                               Chief Justice
Before Chief Justice Gray,
       Justice Davis, and
       Judge Anderson2
Appeal dismissed
Opinion delivered and filed December 7, 2011
Publish
[CRPM]




2
 Ken Anderson, Judge of the 277th District Court of Williamson County, sitting by assignment of the
Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(h) (West 2005).
Archie v. State                                                                                 Page 6
