John Kerr v. Foster Communications Company, Inc.--Appeal from 340th District Court of Tom Green County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2005 » John Kerr v. Foster Communications Company, Inc.--Appeal from 340th District Court of Tom Green County

State: Texas

Court: Texas Northern District Court

Docket No: 03-05-00404-CV

Case Date: 08/19/2005

Plaintiff: BRIAN ERNST

Defendant: THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

Preview:Tricia Boyd v. State of Texas--Appeal from County
Court at Law of Kerr County
Nos. 04-00-00385-CR, 04-00-00386-CR, 04-00-00387-CR,
04-00-00388-CR, 04-00-00389-CR & 04-00-00390-CR
Tricia A. BOYD,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law, Kerr County, Texas
Trial Court Nos. CR-97-0017, CR-97-1080, CR-98-0607,
CR-00-00362, CR-00-00363 & CR-00-0364
Honorable Spencer W. Brown, Judge Presiding
Opinion on State's Motion for Rehearing
Opinion by: Alma L. L pez, Justice
Sitting: Phil Hardberger, Justice
Alma L. L pez, Justice
Karen Angelini, Justice
Delivered and Filed: June 20, 2001
STATE'S MOTION FOR REHEARING GRANTED; DISMISSED
This court's opinions and judgment dated March 14, 2001, are withdrawn. The State's motion for rehearing is granted,
and these appeals are dismissed.
On February 8, 2001, the State filed motions requesting that these appeals be dismissed based on rule 42.4 of the Texas
Rules of Appellate Procedure. That rule requires the court of appeals to "dismiss an appeal on the State's motion,
supported by affidavit, showing that the appellant has escaped from custody pending the appeal and that to the affiant's
knowledge, the appellant has not, within ten days after escaping, voluntarily returned to lawful custody within the
state." Tex. R. App. P. 42.4. The State attached an affidavit from the county attorney for Kerr County stating that the
appellant, Tricia Boyd ("Boyd"), had failed to appear at a hearing in another criminal case in Williamson County and
had forfeited her bond in that cause. Because we could find no authority that mandated an involuntary dismissal where
the appellant failed to appear in an unrelated charge in a different county, we denied the State's motion.
On March 2, 2001, the State filed an amended motion for involuntary dismissal. The State attached an affidavit from
David W. Havis, who was assigned the supervision of Boyd when she was released on bond pending these appeals.
Boyd's release was conditioned upon her participation in an electronic monitoring program. A few months after her
release, Havis received a package in the mail containing Boyd's ankle monitor and bracelet. The transmitter also was
subsequently returned to him. Havis stated that he had informed Boyd that she was not allowed to remove or damage
the monitor while she was participating in the electronic monitoring program. Havis concluded, "Given the above, it is
my opinion as Ms. Boyd's Community Supervision Officer that she did violate Judge Spencer W. Brown's September
26, 2000 Order Releasing Defendant on Conditions in Lieu of Bond Pending Appeal and that she has absconded. . . . It
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is also clear that since January 16, 2001, Ms. Boyd has not been participating in an electronic monitoring program
during the pendency of her appeals as required by the trial judge and by state law as a condition of her remaining free
from incarceration."
In Luciano v. State, 906 S.W.2d 523, 525 (Tex. Crim. App. 1985), the Texas Court of Criminal Appeals noted that
custody has been defined as the "detainer of a man's person by virtue of lawful process or authority." (citing Black's
Law Dictionary, 6th Ed. (1990)). The comment to the definition in Black's Law Dictionary states: "The term is very
elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisonment or
of taking manual possession." Id. The Court noted, "This definition is obviously a very broad one which would
encompass both forceful physical restraint of a suspect by a police officer and, as in the case before us, the physical
restraint of an individual's liberty by legal order." Id.
Although Luciano was a case involving a violation of a court-ordered condition of probation that the individual submit
to supervised confinement in a community corrections facility, which was more of a restraint than electronic
monitoring, the Court of Criminal Appeals has interpreted custody broadly enough to encompass electronic
monitoring. Accordingly, when Boyd mailed her electronic monitoring system back to her probation officer, this was a
sufficient escape from custody to trigger the involuntary dismissal provision of rule 42.4. The State's motion for
rehearing is granted, and these appeals are dismissed.
Alma L. L pez, Justice
PUBLISH
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