Opinion
No. 42703.
January 21, 1970.
Appeal from the 138th Judicial District Court, Cameron County, H. A. Garcia, J.
No attorney on appeal, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
Earl Wright Redman was convicted in the 138th District Court of Cameron County, Texas, for robbery by assault; his punishment was assessed at seven years.
A motion to dismiss the appeal, because of Redman's escape, was filed in the trial court after notice of appeal was given but before the record reached this Court. McGee v. State, Tex.Cr.App., 445 S.W.2d 187, held in a like situation that neither the trial court nor this Court had jurisdiction to dismiss the appeal.
The record on appeal was filed in this Court on December 1, 1969. The affidavit of W. J. Ratliff, Chief Deputy Sheriff of Cameron County, Texas, attached to and made a part of a subsequent motion to dismiss, reflects that Redman escaped from the Cameron County jail on June 21 and had not returned to custody as of the date of the affidavit, January 2, 1970.
In Webb v. State, 449 S.W.2d 230, this Court held the fact that the record on appeal was filed in this Court prior to Webb's return to custody following his escape from jail after sentence and notice of appeal distinguished the case from McGee v. State, supra, and dismissed the appeal.
The State's motion to dismiss the appeal is granted, and the appeal is dismissed.