Luciano v. State

• Decision Date: 20 September 1995
• Docket Number: No. 854-93,854-93
• Citation: 906 S.W.2d 523
• Parties: Louis LUCIANO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 523

906 S.W.2d 523

Louis LUCIANO, Appellant, v. The STATE of Texas, Appellee.

No. 854-93.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 20, 1995.

David C. Guaderrama, El Paso, for appellant.

Jamie A. Pena, John L. Davis, Assistant District Attorneys, El Paso, Robert A. Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MANSFIELD, Judge.

Texas Rule of Appellate Procedure 60(b) provides in part:

An appeal shall be dismissed on the State's motion, supported by affidavit, showing that appellant has escaped from custody pending the appeal and that to the affiant's knowledge, has not voluntarily returned to lawful custody within the State within ten days after escaping....

(Emphasis added.) The issue presented is whether the court of appeals erred in holding that a defendant has "escaped from custody," as that phrase is used in Rule 60(b) ¹, when he violates a condition of probation by absconding from his mandatory residence at a community corrections facility.

In June of 1992, appellant pled guilty to a charge of criminal mischief and received a one-year probated sentence. On January 11, 1993, appellant's probation was extended to two years. At that time, the conditions of his probation were modified to require appellant to reside in a community corrections facility, with the explicit restriction that he not leave the facility without written permission. Appellant subsequently filed an application for writ of habeas corpus. The trial court granted the writ but denied relief on April 12, 1993. Subsequently, appellant absconded from his residence at the community corrections facility, his whereabouts unknown to either the court or his appellate counsel. The court of appeals found that appellant's actions constituted an "escape from custody," and therefore granted the State's motion to dismiss the pending appeal under Rule 60(b). Luciano v. State, 855 S.W.2d 882 (Tex.App.--El Paso 1993). We granted appellant's petition for discretionary review pursuant to Rule 200(c)(2) and will affirm the judgment of the court of appeals.

The crucial issue before the court of appeals and now before this Court is whether the term "custody" in Rule 60(b) includes mandatory confinement in a community corrections facility as a probationary condition. The court of appeals answered this question in the affirmative by simply adopting the definition of "custody" provided in section 38.01(2) of the Texas Penal Code. ² In our view, this type of analysis is incorrect for two reasons. First, the plain language of section 38.01(2) clearly states that particular definition of "custody" is to be applied only to the use of the word "custody" in chapter 38 of the penal code. Second, we are not bound by the definition of term found in codes or statutes when interpreting those terms in our own rules. The Texas Penal Code is a statutory body of law which was created, and is frequently amended, by our state Legislature. Section 38.01(2) is but one example of numerous locations within the penal code where the Legislature has provided a definition for a particular word or phrase in an attempt to define the scope of conduct covered by a particular offense. To that extent, legal definitions provided in the Penal Code are specifically tailored for use within that body of law and, therefore, their meanings may be different from the meanings ascribed to the same words or phrases as they are used in our Rules. For instance, Section 38.01(3) states that:

In this chapter ... "Escape" means unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose or limited period, but does not include a violation of conditions of probation or parole.

(Emphasis added.) Clearly, the commonly-accepted meaning of "escape" would include situations such as appellant's where an individual violates a court order by absconding from his residence at a community corrections facility without the requisite permission. And yet, this act just as clearly does not constitute the offense of "escape" under Chapter 38 of the penal code, because the Legislature has drafted the definition of "escape" so as to exclude this conduct from criminal prosecution.

A more appropriate manner of interpreting the meaning of a word or phrase used in the Texas Rules of Appellate Procedure is to apply its commonly-accepted meaning within the context of the given rule and then determine whether that meaning is consistent with the purpose of the rule. In the context of criminal law, "custody" has been defined as "the detainer of a man's person by virtue of lawful process or authority," Black's Law Dictionary, 6th Ed. (1990), with the comment that 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. This definition is obviously a very broad one which would encompass both the forceful, physical restraint of a suspect by a police officer and, as is the case before us, the physical restraint of an individual's liberty by legal order.

With this definition in hand, our inquiry now requires us to divine the intended purpose of Rule 60(b). Effective on September 1, 1986, Rule 60(b) was modelled after, and ultimately replaced, a substantially similar provision contained in Article 44.09 of the Texas Code of Criminal Procedure. ³ Although this Court has never before discussed the policies underlying article 44.09 and Rule 60(b), the United States Supreme Court has noted that the "ends served by Art. 44.09" are that "[i]t discourages the felony of escape and encourages voluntary surrenders," while promoting "the efficient, dignified operation of the Texas Court of Criminal Appeals." Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975). We agree with this characterization of the policies underlying the escape-dismissal provision, both in its prior form as Article 44.09 and as it currently exists in Rule 60(b). Of particular note in the instant case is the policy of promoting the "dignified operation" of an appellate court by dismissing the appeal of an individual who has escaped custody. In our view, the dignity of an appellate court is maligned by an appellant who attempts to access the power of the judicial system to reverse a conviction, while at the same time treating with contemptuous disregard the authority of the judiciary to mandate his incarceration. This sentiment, which is not unique to Texas jurisprudence, has been echoed by the United States Supreme Court. In Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), the Court dismissed the appeal of an appellant who had escaped custody, and noted that "[n]o persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction."

An appellant who has escaped from confinement also infringes upon the "efficient, dignified operation" of our appellate courts by placing those courts in a position where they cannot enforce their judgments. The United States Supreme Court, again, has long asserted such a rationale for dismissal of appeals:

If we affirm the judgment [of the escaped appellant], he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest.

Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876).

Having established the commonly-accepted definition of "custody" and discussed some of the relevant policies underlying Rule 60(b), the final phase of our analysis is to determine whether a definition of "custody" which includes probationary confinement in a community corrections facility will promote the efficient and dignified operation of this Court and the courts of appeals. We believe that it will. An individual who, during the course of his appeal, violates a court-ordered condition of probation that he submit to supervised confinement in a community corrections facility infringes upon the efficiency and dignity of our appellate courts to the same degree as an appellant who has escaped from confinement in a county jail or the Texas Department of Corrections. In all of these cases, the appellant seeks relief from his conviction through use of the judicial system, while simultaneously spurning the authority of the judiciary to mandate his confinement. Additionally an appellate court which renders a judgment adverse to an escaped appellant will have difficulty enforcing that judgment, regardless of whether the appellant absconded from confinement mandated as a condition of probation or confinement as a result of formal imprisonment.

For the reasons discussed above, we hold that the term "custody," as used in Tex.R.App.Proc. 60(b), does include mandatory confinement in a community corrections facility imposed as a condition of probation. Because appellant was in custody, for purposes of the rule, the court of appeals acted properly in granting the State's motion to dismiss.

The judgment of the court of appeals is AFFIRMED.

CLINTON, Judge, concurring.

We are reviewing a judgment of the court of appeals to determine whether, as applicant claims in his sole ground for review:

The court of appeals erred in granting the State's motion to dismiss appellant's appeal, for the reason that appellant had not escaped from custody as contemplated by TRAP 60(b).

See Luciano v. State, 855 S.W.2d 882 (Tex.App.--El Paso 1993). ¹

The majority blurs critical facts of this matter on the first page of its opinion. A chronology of events pertinent to resolution of issues presented by the ground for review is collated in the margin. ² So far as this record shows applicant is still at large.

I

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