Thompson v. State

Appeal is taken from a conviction for burglary of a motor vehicle. After the jury found appellant guilty, the court assessed punishment, enhanced by a prior conviction, at eight years.

Appellant was sentenced on August 21, 1978. On the day of sentencing, the clerk of the court directed the Sheriff of Harris County to deliver appellant to the Texas Department of Corrections. Appellant was received by the Department of Corrections on August 29, 1978. On March 10, 1980, appellant posted a $10,000.00 appeal bond which was approved by the trial court. On January 20, 1981, the trial court entered an order which recites that appellant has been released on bond and cannot be located.

With regard to the delivery of the place of confinement, Art. 42.09, Sec. 5, V.A.C. C.P., provides:

“If a defendant is convicted of a felony and his sentence is a term of ten years or less and he gives notice of appeal, he shall be transferred to the Department of Corrections on a commitment pending a mandate from the Court of Criminal Appeals upon request in open court or upon written request to the sentencing court. Upon a valid transfer to the Department of Corrections under this section, the defendant may not thereafter be released on bail pending his appeal." (Emphasis added).

In the instant cause, appellant gave notice of appeal following imposition of the eight year sentence. Appellant was then transferred to the Department of Corrections. No written request for such transfer appears in the record. The record does not contain a transcription of the court reporter’s notes from the time of sentencing at which time an oral request for such transfer could have been made in open court. In the absence of a showing to the contrary, this Court will presume that the trial court’s actions were correct. King v. State, 131 Tex.Cr.R. 56, 95 S.W.2d 454; Sullivan v. State, 95 Tex.Cr.R. 527, 254 S.W. 966. We will therefore presume that appellant’s arrival at the Department of Corrections on August 29,1978, came about as the result of a valid transfer under Art. 42.09, Sec. 5, supra. Appellant having been validly transferred to the Department of Corree-tions, he was not thereafter eligible to be released on bail pending appeal. Thus, appellant was erroneously released when the court approved his appeal bond on March 10, 1980.

In Prince v. State, 169 Tex.Cr.R. 559, 336 S.W.2d 140, it was held that when a defendant has been released on bail when he is not entitled to bail, he has the status of an escapee and the appeal will be dismissed. In Moreno v. State, 544 S.W.2d 398 (Tex.Cr.App.), it was held that when a defendant is mistakenly released by the Department of Corrections and his whereabouts are unknown to defense counsel and the court, his appeal will be dismissed because he has the status of an escapee.

In the instant cause, appellant has been erroneously released on bail. His whereabouts are unknown to the court and defense counsel. Appellant is in the status of an escapee. Prince v. State, supra; Moreno v. State, supra. Art. 44.09, V.A.C.C.P., provides that if a defendant, pending appeal in a felony case, makes his escape from custody, the jurisdiction of this Court will no longer attach to the case.

The appeal is dismissed.