Russell v. State, 040000638CR
| Decision Date | 24 July 2002 |
| Docket Number | 4,040000638CR |
| Parties | Steven L. RUSSELL, Appellant v. The STATE of Texas , AppelleeCourt of Appeals of Texas, San Antonio |
| Court | Texas Court of Appeals |
From the 278th Judicial District Court, Walker County, Texas Trial Court No. 19,856-C Honorable Erwin G. Ernst , Judge Presiding
Sitting: Sarah B. Duncan , Justice, Karen Angelini , Justice, Sandee Bryan Marion , Justice
Opinion by: Karen Angelini , Justice
Steven L. Russell appeals a jury verdict finding him guilty of escape. The trial court's judgment is affirmed.
Steven Russell was serving a prison sentence in the Estelle Unit of the Texas Department of Criminal Justice, Institutional Division. On December 13, 1996, in the infirmary restroom, another inmate noticed Russell change into doctor's clothing. Russell, dressed as a physician, left the unit and was given a ride to a local Denny's Restaurant and from there, to a hospital in Houston. Russell was found in Biloxi, Mississippi on December 23, 1996 and returned to Texas.
Russell was charged with felony escape. A jury found him guilty of the charged offense and sentenced him to 99 years in prison. Russell appeals, arguing the evidence is legally and factually insufficient to support his conviction, he was denied his right to a speedy trial, and he received ineffective assistance of counsel at trial.
In his first issue, Russell asserts the jury's verdict is not supported by legally or factually sufficient evidence. In reviewing the legal sufficiency of the evidence, we review the relevant evidence, both direct and circumstantial, in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Macri v. State, 12 S.W.3d 505, 507 (Tex. App.-San Antonio 1999, pet. ref'd). In doing so, we ask whether a rational trier of fact could have found all of the essential elements of the offense to arrive at the challenged finding beyond a reasonable doubt. Jackson, 443 U.S. at 318; Macri, 12 S.W.3d at 507.
In considering the factual sufficiency of the evidence, this court views all of the evidence in a neutral light, setting aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We review the jury's deliberation and weighing of the evidence in a deferential manner in order to avoid substituting our judgment for the jury's. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 133.
Fernando E. Figueroa was the Warden of the Estelle Unit on December 13, 1996. Figueroa testified that Russell was in his custody on that date and that he never gave Russell consent to leave the Unit.
Mitchell Garrett, an inmate at TDC, knew Russell. Garrett was in the infirmary on December 13, 1996. Garrett noticed Russell in the infirmary restroom changing into doctor's clothing. Garrett witnessed Russell clip an identification tag to his shirt and leave the infirmary. Carl Ogle is also an inmate at TDC and was acquainted with Russell. According to Ogle, he and Russell shared a prison cell. On December 11, 1996, Ogle noticed Russell had collected extra necessities, including several blankets and extra sets of clothes. Ogle also noticed green ink stains on Russell's blankets and that Russell had nine or ten felt-tip markers.
Bobby Rushing lives near the Estelle Unit. On December 13, 1996, at 5:30 a.m., Rushing heard his door bell ring. A man dressed as a doctor was at the door. The man told Rushing that he had had an alcohol related accident and needed a ride into town. Rushing took the man to a Denny's Restaurant at approximately 6:00 a.m. The next morning, Rushing found a shirt similar to the one the man was wearing in his barn.
Margie Frank Allen is a cab driver. She testified that on December 13, 1996, she picked up Russell at Denny's and drove him to Hermann Hospital in Houston. Russell told her he was going into the hospital to get fare money, but he never returned.
Christy Putnam has been a TDC guard since May of 1996. On December 13, 1996, she was working at the control picket at the Estelle Unit. Putnam remembered allowing a person to leave the Unit dressed in medical attire with a medical identification tag. Putnam could not testify that it was Russell who left the prison unit disguised as a physician.
Captain David Hosea runs the Regional Medical Facility at the Estelle Unit. At 7:00 a.m. on the morning of December 13, 1996, prison officials realized an inmate was missing. After conducting a "bed book," officials discovered Russell was missing. After thoroughly searching the area, Russell could not be found. Internal Affairs took over the search. Ultimately, it was determined that Russell had passed through the control picket and out through the front gate of the Unit.
Richard Voight, a corrections officer for TDC, received a phone call from the radio picket officer, informing him a medical employee was walking to the parking lot to his vehicle. Voight then observed a person in green medical attire approach his picket. He did not, however, see where the individual went. Voight believes he allowed an inmate to leave the premises.
John Pugh was a dog sergeant at the Estelle Unit on December 13, 1996. Pugh conducted a search of the Unit grounds with his dog. The dog picked up a scent, which led them to the main entrance. The dog, however, lost the scent.
Glen Collins is a correctional officer and was supervising the fence squad at the Estelle Unit on December 17, 1996. As they were picking up trash along the roadway, one of the inmates found an identification tag. Collins took the tag to Sergeant Pugh. According to Collins, the tag had been altered to look like an officer's tag.
Terry Cobbs is a fugitive investigator for the TDCJ's Inspector General's office. He testified that, on December 23, 1996, a United States Marshall found Russell in Biloxi, Mississippi. Cobbs brought Russell back to Texas from Mississippi.
A.P. Merillat, an investigator with the Special Prosecution Unit, is a fingerprint expert. On the day of trial, Merillat took Russell's fingerprints. Merillat compared Russell's fingerprints with another set of fingerprints contained in the pen packet of a person named Steven Russell. According to Merillat, the fingerprints were identical. Merillat, therefore, concluded "[t]he person that I took fingerprints from here in the courtroom, , is the same person who made fingerprints in this pen packet." The State then introduced Exhibit 19, which includes information regarding Russell's prior conviction for escape. It indicates Russell was sentenced to serve twenty years for the offense.
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. Tex. Pen. Code Ann. § 38.06(a) (Vernon Supp. 2002); Scott v. State, 672 S.W.2d 465, 466 (Tex. Crim. App.1984). Escape is defined as an "unauthorized departure from custody."Tex. Pen. Code Ann. § 38.01(2) (Vernon Supp. 2002);Lawhorn v. State, 898 S.W.2d 886, 890 (Tex. Crim. App.1995). Custody is not limited to actual, physical "hands-on" restraint, but in the context of escape, is more than the right to control; it implies a degree of physical limitation, restraint, or control the nature and scope of which depends on the facts of each case. Lawhorn v. State, 843 S.W.2d 268, 270 (Tex. App.-Austin 1992), aff'd, 898 S.W.2d 886 (Tex. Crim. App.1995).
Russell asserts that "[a] person who departs from custody by mistake on the part of the authorities does not commit the offense of escape." We have found no cases directly dealing with Russell's argument. However, case law interpreting Texas Rule of Appellate Procedure 42.4 offers some guidance to the resolution of this issue. Rule 42.4 authorizes an appellate court to dismiss an appeal when the appellant has escaped from custody pending the appeal. Tex. R. App. P. 42.4. In this context, the Court of Criminal Appeals has defined "escape" to mean "to get oneself free from confinement or control." Estep v. State, 901 S.W.2d 491, 495 (Tex. Crim. App. 1995). The court limited the application of the definition, stating "[b]eing released from custody by someone in authority, even when such release is not authorized by law, does not constitute 'getting oneself free from confinement.'" Id. The court, however, implied that if the record showed that an "Appellant departed from custody with awareness that the departure was not authorized (which can usually be made by setting out the circumstances of the departure)," it would be proper to conclude an individual had escaped. Id.
Here, the record demonstrates prison employees permitted Russell to leave the premises under the mistaken belief that he was a physician. Russell induced the employees' mistaken belief by disguising himself as a physician. Thus, the evidence shows Russell knew he was being released improperly and he may therefore be classified as an "escapee," assuming the remaining elements of the offense are established.
Russell first asserts that the evidence is insufficient to show he previously was convicted of felony escape. 1 Specifically, he maintains the only evidence of his alleged felony conviction was State's Exhibit 19 and Merillat's testimony. Exhibit 19 includes a business records affidavit an offense information sheet, and fingerprint records. The offense information sheet includes pictures of Russell and sets out the offense committed-felony escape, the date the judgment was entered, and the sentence imposed. It further indicates that Russell pleaded guilty to the alleged offense. Merillat testified that the fingerprints included in Exhibit 19 match those he took from Russell during trial.
Furthermore, Figueroa, when asked...
To continue reading
Request your trial