             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                                          No. PD-1644-06


                              GRADY LEWIS WARNER, Appellant

                                                v.

                                       THE STATE OF TEXAS


                    On Discretionary Review of Case 14-05-00369-CR of the
                                 Fourteenth Court of Appeals,
                                       Burleson County


               WOMACK , J., delivered the opinion of the Court, in which MEYERS,
               PRICE, JOHNSON, KEASLER, HERVEY , HOLCOMB, and COCHRAN, JJ.,
               joined. KELLER, P.J., dissented.


       The issue in this case is the meaning of “custody” in the statute that defines the offense of

escape; specifically, whether a person “escapes from custody” within the meaning of Section

38.06(a) of the Penal Code if, after an officer has grasped his arms and told him he is under

arrest, he pulls free and runs away.
                                                                                           W arner - 2

       On such facts, a jury found the appellant guilty of the felony offense of escape. He

appealed, claiming the evidence was legally and factually insufficient. The Fourteenth Court of

Appeals held that the evidence was legally insufficient and acquitted the appellant.1

       We granted the State’s petition for review which asked two questions. The first was

whether, when deciding whether an individual is guilty of the offense of escape, a jury is

authorized to employ any meaning of the term “arrest” that is acceptable in common parlance.

We hold that it is not.

       The other question was whether our decision in Medford v. State2 should be re-examined.

After re-examining it, we hold that it was correctly decided, although its decision was not exactly

as the Court of Appeals described it.

                                             The Escape Statute

       The offense of escape is defined by Section 38.06 of the Penal Code. When this case

arose (before September 1, 2007) the section read:

       (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.
       (b) Except as provided in Subsections (c), (d), and (e), an offense under this section is a
Class A misdemeanor.
       (c) An offense under this section is a felony of the third degree if the actor:
              (1) is under arrest for, charged with, or convicted of a felony; or
              (2) is confined in a secure correctional facility; or
              (3) is confined to a secure correctional facility, as defined by Section 51.02,
              Family Code, other than a halfway house, operated by or under contract with the
              Texas Youth Commission.
       (d) An offense under this section is a felony of the second degree if the actor to effect his
escape causes bodily injury.


       1
           Warner v. State, 201 S.W.3d 197 (Tex. App. — Houston [14th Dist.] 2006).

       2
           13 S.W .3d 769 (Tex. Cr. App. 2000).
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         (e) An offense under this section is a felony of the first degree if to effect his escape the
actor:
                    (1) causes serious bodily injury; or
                    (2) uses or threatens to use a deadly weapon.3

         Although it does not apply directly to this case, because it was enacted after commission

of the alleged offense, a subsequent amendment may inform our consideration. In 2007,

Subsection (a) was amended to read:

         (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;
                (2) in custody pursuant to a lawful order of a court;
                (3) detained in a secure detention facility, as that term is defined by Section 51.02,
                Family Code; or
                (4) in the custody of a juvenile probation officer for violating an order imposed by
                the juvenile court under Section 51.02, Family Code.4

                                         Proceedings in the Courts Below

         In the District Court, Burleson County Deputy Sheriff Justin Royall testified that on

January 3, 2004, he drove in his patrol vehicle to investigate a report of a domestic dispute

involving the appellant. The dispatcher told Deputy Royall that a “blue” warrant had been issued,

authorizing the appellant’s arrest for a parole violation. Deputy Royall found a group of people

standing in front of a residence. He said he needed to talk to the appellant, who walked to the

patrol vehicle with the deputy. The appellant was backed up against the vehicle when Deputy

Royall placed his hands on the appellant’s arms and told him he was under arrest. When the

deputy took his right hand off the appellant and reached for his handcuffs, keeping his left hand




         3
             Act of June 18, 1999, 76th Leg., R.S., ch. 526, § 1.

         4
             Act of June 15, 2007, 80th Leg., R.S., ch.908, § 38.
                                                                                            W arner - 4

on the appellant’s wrist, the appellant struggled and broke free from the officer’s hold. He ran

into the woods. The deputy pursued the appellant, but he got away.

       Although the deputy’s testimony was impeached with statements he made in his offense

report and contradicted by the testimony of the appellant’s relatives, the Court of Appeals

properly looked at the evidence in the light most favorable to the verdict of guilt and reviewed its

legal sufficiency by asking whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt.5 The Court concluded:

       Here, there is some evidence from which a rational jury could believe that Deputy
       Royal [sic] placed his hands on appellant’s arms and was still grasping one arm with
       his left hand when appellant broke free and fled. Thus, the question before us is
       whether the grasping of a suspect’s arm while orally telling him he is under arrest
       constitutes “custody.”6

       The Court construed the term “custody” in the context of 38.06 by citing our decision in

Medford. The Court summarized our holding in Medford as follows:

       There, the court of criminal appeals held the defendant was not in “custody,” because
       an “arrest” is complete only “when a person’s liberty of movement is successfully
       restricted or restrained, whether this is achieved by an officer’s physical force or the
       suspect’s submission to the officer’s authority.” Of course, an escape can only occur
       where the officer is unable to “successfully” restrain the defendant. Thus, under the
       court of criminal appeals’ construction of the statute, no person may be prosecuted
       for escape where he succeeds in prying himself loose from the officer’s grasp.7

       The Court found the facts in the present case to be indistinguishable from those in

Medford, and therefore held that the evidence was legally insufficient to support the appellant’s

conviction for escape. The Court reversed the decision of the trial court and acquitted the


       5
           See Warner, 201 S.W .3d, at 199.

       6
           Ibid.

       7
           Id., at 200 (footnote omitted).
                                                                                            W arner - 5

appellant. Having sustained the appellant’s legal-sufficiency claim, the Court did not reach the

appellant’s second point of error.8

                                            The State’s Argument

        In this court, the State argues that, because the Legislature did not specifically define the

term “arrest” as it is used in § 38.06, the jury may assign to the term any meaning that is

acceptable in common parlance. Therefore, a jury adopting such a meaning cannot be considered

to have acted irrationally. Because the evidence indicated the arresting officer’s intention to

detain or take the appellant into custody, the evidence was sufficient for the jury to determine the

appellant had been placed under arrest. The State asserts that, to the extent we held otherwise in

Medford, we should overrule that decision.

        The State further argues that, in Medford, this court usurped the legislature’s authority to

define the conduct that constitutes criminal offenses. In that case, the State claims, we improperly

determined what conduct should fall within the escape statute by narrowing the definition of

“arrest.”

        The State relies on a pre-Medford case, Vernon v. State,9 for support. In Vernon, we said

that terms that were not legislatively defined were to be understood to have their ordinary

meanings, and, accordingly, jurors could assign to those words any meaning that was “acceptable

in common parlance.”10 The State contends that the legislature, had it wanted to, was free to

provide that a “completed arrest” was necessary to an escape and to define what a “completed


        8
            Ibid.

        9
            841 S.W.2d 407 (Tex. Cr. App. 1992).

        10
             Id., at 409.
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arrest” means for the offense of escape. The fact that the legislature has been silent on the issue

indicates its intent not to so restrict the meaning of the term “arrest.”

                                                  Medford v. State

         In Medford, the arresting officer told the appellant he was under arrest and asked him to

put his hands behind his back.11 As the officer grasped the appellant’s arm to put handcuffs on

him, the appellant broke loose and fled. The appellant was convicted of escape and possession of

cocaine, and he appealed.12

         The Third Court of Appeals reversed the escape conviction, concluding that the appellant

had not been placed under arrest because the officer never secured custody and control of him.13

Without a completed arrest, the appellant could not have escaped within the meaning of Section

38.06. The Court of Appeals relied in part for its conclusion on the meaning of “arrest” contained

in Article 15.22 of the Code of Criminal Procedure, the only statutory definition the legislature

had provided for that term.14

         On petition to this court, the State raised two grounds for review. The first, which is

identical to that raised by the State in this case, asked us to consider whether a jury could use any

meaning of “arrest” acceptable in common parlance when deciding guilt on the offense of




         11
              Medford, 13 S.W .3d, at 771.

         12
              Ibid.

         13
              Ibid.

         14
            Ibid. (The definition of “arrest” in Art. 15.22 stated that a person is under arrest “when he has been
actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an
officer arresting without a warrant.”)
                                                                                              W arner - 7

escape.15 The second asked whether, when reviewing the sufficiency of the evidence for an

“escape” conviction, a court could use the definition of “arrest” contained in Article 15.22.16 We

answered “no” to both questions and determined another definition to be appropriate.17

        We said that, generally, a term not defined by the legislature may be understood by its

meaning in ordinary usage, and therefore jurors might assign to it any meaning “acceptable in

common parlance.”18 However, the term “arrest” falls within an exception because it is a

technical term, possessing a long history as such in the common law, that principles of

construction dictate be given its technical meaning.19 Therefore, “it would be inappropriate if

jurors arbitrarily applied their personal definitions of arrest.”20

        Neither would it be appropriate, we said, to use the definition of “arrest” in Article

15.22.21 “[I]t does not take long to discover there is a frustrating circularity in the definitions of

‘arrest’ in Article 15.22 and ‘custody’ in § 38.01 of the Texas Penal Code. Succinctly stated,

custody is defined as being ‘under arrest,’ and arrest is defined as being ‘taken into custody.’”22




        15
             Ibid.

        16
             Ibid.

        17
             Id., at 771, 772.

        18
             Id., at 771-72.

        19
             Id., at 772.

        20
             Ibid.

        21
             Ibid.

        22
             Ibid.
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       We noted that jurors needed a more precise and uniform definition in order to determine

what circumstances constitute a completed arrest.23 We held that:

       [f]or purposes of the escape statute, an “arrest” is complete when a person’s liberty
       of movement is successfully restricted or restrained, whether this is achieved by an
       officer’s physical force or the suspect’s submission to the officer’s authority.
       Furthermore, an arrest is complete only if “a reasonable person in the suspect’s
       position would have understood the situation to constitute a restraint on freedom of
       movement of the degree which the law associates with formal arrest.”24

       We vacated the judgment of the Court of Appeals and remanded the case for further

proceedings consistent with our opinion.25

       Our decision in Medford was criticized by the Court of Appeals in this case, on the

ground that “an escape can only occur where the officer is unable to ‘successfully’ restrain the

defendant. Thus, under the court of criminal appeals’ construction of the statute, no person may

be prosecuted for escape when he succeeds in prying himself loose from the officer’s grasp.”26

       While it is true that an escape may involve proof that an officer was unable to continue to

restrain a person who had been in custody, the language of the statute expressly requires that a

person have been in custody before he can escape. To paraphrase the Court of Appeals’ language,

escape can occur only after an officer has successfully restrained or restricted a suspect — that is,

when the officer’s grasp has amounted to an arrest. To hold otherwise would ignore the

distinction the legislature has made between the offense of escape and the offenses of evading



       23
            Ibid.

       24
            Id., at 773.

       25
            Id., at 774.

       26
            Warner, 201 S.W .3d, at 200.
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arrest (which a person commits when “he intentionally flees from a person he knows is a peace

officer attempting lawfully to arrest or detain him”)27 and resisting arrest (which a person

commits when he “intentionally prevents or obstructs a person he knows is a peace officer …

from effecting an arrest, search, or transportation of the actor or another by using force against

the peace officer or another”).28 Those are the offenses that a person commits when the officer

has not successfully restrained or restricted a suspect.

       To hold otherwise also would use the terms “arrest” and “custody” interchangeably. To

clarify, arrest is a subset of custody. In the case before us and in Medford, the question was

whether a person was in custody by being under arrest, but that is not always the case. The escape

statute that we are construing expressly provided that custody may include other things. A person

may be in custody while “charged with” or “convicted of an offense,” “pursuant to a lawful order

of a court,” or while “detained in a secure detention facility.”29

       Having re-examined and adhered to our holding in Medford, we affirm the judgment of

the Court of Appeals that the evidence was legally insufficient to sustain a conviction for escape.


Delivered July 2, 2008.
Publish.




       27
            See P EN AL C O D E § 38.04(a).

       28
            See P EN AL C O D E § 38.03(a).

       29
            P EN AL C O D E § 38.06(a).
