
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 
2-04-554-CR
  
  
JIMMIE 
LEE HENDERSON                                                       APPELLANT
  
V.
  
THE STATE OF 
TEXAS                                                                  STATE
   
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FROM 
THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1 AND JUDGMENT
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        On 
January 27, 2005, we abated this appeal and remanded the cause to the trial 
court to determine whether appellant Jimmie Lee Henderson desired to prosecute 
his appeal and, if so, to determine whether he was indigent and to appoint 
counsel if necessary.  The appeal has since been reinstated upon the filing 
of the clerk’s and reporter’s records from the abatement hearing.
        Appellant 
failed to appear at the abatement hearing; therefore, the trial court could not 
determine whether appellant desired to prosecute his appeal or whether he was 
indigent.  The trial court did find, however, that since the issuance of a 
capias in September 2004 for appellant’s failure to appear for a court hearing 
on the status of his appeal bond, appellant’s counsel had lost contact with 
him and law enforcement personnel had been unable to locate him.  
Consequently, the trial court concluded that appellant had escaped and absconded 
from the court’s jurisdiction and granted the State’s and appellant’s 
counsel’s requests to dismiss the appeal.
        We 
must dismiss an appeal upon the State’s motion, supported by affidavit, 
showing that an appellant has escaped from custody.  See Tex. R. App. P. 42.4.  In this 
case, the State supported its oral motion to dismiss at the abatement hearing 
with live testimony from counsel showing that appellant had escaped from 
custody.  Therefore, pursuant to appellate rule 2, we suspend rule 42.4's 
requirement that the State’s motion to dismiss be supported by affidavit, and 
we dismiss the appeal.  See Tex. 
R. App. P. 2, 42.4, 43.2(f).
  
 
                                                                  PER 
CURIAM
    
 
PANEL 
D :   CAYCE, C.J.; LIVINGSTON, and DAUPHINOT, JJ.
 
DO 
NOT PUBLISH
Tex. R. App. P. 47.2(b)
 
DELIVERED: 
April 7, 2005

 
NOTES
1.  
See Tex. R. App. P. 47.4.
