Scott v. State

672 S.W.2d 465, 1984 Tex. Crim. App. LEXIS 701

• Court: Court of Criminal Appeals of Texas
• Decided: July 11, 1984
• Docket: 64716
• Status: Published

Opinions

OPINION

ODOM, Judge.

Appellant was convicted of the offense of escape under V.T.C.A., Penal Code Sec. 38.-07. Punishment was assessed at 5 years.

The indictment in this cause alleges in pertinent part that appellant “did then and there unlawfully, intentionally and knowingly escape from confinement in the Taylor County, Texas jail situated in the City of Abilene.” V.T.C.A., Penal Code Sec. 38.07 provides:

“A person arrested for, charged with, or convicted of an offense commits the offense of escape if he escapes from custody.”

Appellant argues that the evidence is insufficient to sustain a conviction for escape.

At the time of the alleged escape, appellant was being held in the Taylor County jail pending this transfer to the Texas Department of Corrections. The Taylor County jail consists of a four story brick structure that is enclosed by a chain link fence with barbed wire strung along the top of the fence. The Taylor County jail was used to house prisoners and administrative officials of the Sheriff’s office.

Sometime around 1:00 a.m. on August 25, 1979, a corrections officer in the jail received information that there was going to be an escape from the jail around 5:30 a.m. that same day. The corrections officer relayed this information to various other jail officials and then proceeded to examine the hole on the east side of the building where the escape was supposed to take place. At the time she examined the hole, it was not large enough to allow anyone to pass through it. Based upon this information a deputy sheriff and the jail administrator set up a surveillance on the east side of the jail around 4:45 a.m. on August 25, 1979. Sometime around 5:00 a.m. they began to notice activity in the area of the jail where the hole was located. The activity appeared to be someone enlarging the hole from the inside of the jail and lasted until 7:40 a.m. when appellant emerged from the hole. At that time appellant was inside the fenced yard area, but the gate to the yard was unlocked. Prior to appellant exiting the yard, he was arrested by the deputy sheriff. Appellant was a trusty in the Taylor County jail and was free to leave his cell at 5:00 a.m. every morning.

The offense of escape is comprised of three elements: (1) escape (2) from custody (3) after having been arrested for, charged with or convicted of an offense. Garcia v. State, 537 S.W.2d 930, 932. Appellant contends that he never departed from custody since he was still within the enclosed yard at the time of his arrest. Custody is defined as “detained or under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court.” V.T.C.A., Penal Code Sec. 38.01(2). Confinement, as used in the indictment, is not defined in the Penal Code. The usual dictionary definition for the verb “confine” is “to keep within bounds or imprison.” Bal-lentine’s Law Dictionary 244-245 (3rd ed. 1969). Escape is defined in part as “unauthorized departure from custody ...” V.T. C.A., Penal Code Sec. 38.01(3).

The testimony revealed that while the yard was part of the Taylor County jail facilities, inmates were not allowed to leave the building at any time unless accompanied by a deputy. The fenced yard was not part of a trustee’s assigned area. Appellant completed the offense of escape when he dug out of the building. The walls of the jail building itself were the bounds of appellant’s detention and custody. Once he violated this boundary appellant was no longer in the custody of the sheriff’s office even though he was under surveillance by a deputy. The fact that the yard was enclosed by a fence and was part of the jail facilities has no bearing on this issue. The jail administrator testified that appellant was confined to the jail building. Appellant was not authorized to depart from his detention in the jail building itself. See Webb v. State, 533 S.W.2d 780, 788. Appellant’s first ground of error is overruled.

In his second ground of error appellant argues that the indictment is fundamentally defective because it fails to allege that the escape occurred “from a penal institution.” The indictment alleged that appellant “escaped from confinement in the Taylor County, Texas jail situated in the city of Abilene.” We overrule appellant’s second ground of error. See Legg v. State, 594 S.W.2d 429, 432.

The judgment of the trial court is affirmed.