Opinion
No. 43647.
November 25, 1970.
Appeal from the Criminal Court, Jefferson County, George D. Taylor, J.
Frank M. Lamson, Port Arthur, for appellant.
W.C. Lindsey, Dist. Atty., and Lawrence J. Gist, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
This is an appeal from a conviction for the possession of marihuana with the punishment assessed by the jury at 15 years.
It has been shown by affidavit of the sheriff of Jefferson County, Texas, dated October 26, 1970, that the appellant Ballage escaped from his custody by force on October 17, 1970, and has not voluntarily returned or been recaptured. At the time of his escape appellant's appeal was not pending before this court, but the record in such cause was received and filed November 4, 1970. The State has now filed a motion to dismiss the appeal on the ground that the appellant is still at large.
Attached to said motion is a second affidavit of the sheriff of Jefferson County dated November 9, 1970, to the effect that the appellant has not been returned to custody.
Where the record on appeal is filed in this court prior to the appellant's return to custody following his escape from jail after sentence and notice of appeal, the State is entitled to have the appeal dismissed. Articles 44.09 and 44.10, Vernon's Ann.C.C.P.; Redman v. State, Tex.Cr.App., 449 S.W.2d 256; Webb v. State, Tex.Cr.App., 449 S.W.2d 230. The fact that the record on appeal is filed in this court while the appellant is still at large or prior to his return to custody distinguishes this case from McGee v. State, Tex.Cr.App., 445 S.W.2d 187.
The State's motion is granted.
The appeal is dismissed.