Defendant was sentenced to five years by a jury on August 20, 2001, and gave notice of appeal to trial court. Trial court released him on his previous bond. Defendant split and no appeal was ever filed. (His attorney was subsequently disbarred.) Almost 6 years later, I have inherited this file. Nothing was ever sent to TDCJ. Defendant is free. I am looking at 42.09 Sec. 7 CCP and wondering if the trial court has lost jurisdiction. I would like to get the guy to TDCJ asap. Any suggestions on how to proceed?

Have judge issue a capias for arrest of defendant. Bring him to court. Re-sentence with begin date as date of confinement on capias. Issue a new judgment reflecting those dates and send him on to prison.

Defendant may make an argument for credit for time spent free. I would think he has little equity in that argument.

While he's obviously forfeited on the bond, I don't know whether he's forfeited his right to appeal by taking off like that. What did the Court of Appeals do when the never-filed brief became overdue?

I think ours initially send the attorney of record a stern warning saying that a motion for extension is due, then maybe another one saying that the brief, if it's going to be filed, needs to be filed by such and such a date, and at some point, they remand the case to the trial court to have a hearing with the attorney and client present and make findings regarding what's going on and whether the guy really wants an appeal or not.

Ideally, at that point, they either go ahead and file the brief, file a motion for dismissal, or get another attorney appointed. But sometimes things end up slipping through the cracks, and if that's what happened here, a call to the clerk of the appellate court might get things back on track.

Elizabeth Foley
Ass't Crim. D.A.
Galveston County

What about CCP 44.10, which authorizes dismissal of an appeal if the defendant escapes?

If the defendant filed a notice of appeal but the reporter's record was never filed with the court of appeals, then the trial court still has jurisdiction. I'd follow John's suggestions and see what happens.

Andrea and John are indeed right on this--"absconding while released on appeal bond" is considered a form of escape for purposes of the above statute and TRAP 42.4, IF it is a situation where it can be shown that his apparent disappearance was voluntary (he didn't "check in" if required to do so, or notification was sent to him that he needed to turn up in court and either blew it off or was long gone at that point).

I may have made other assumptions about that due to our having had a few cases that have been nightmares to straighten out where it really WASN'T the defendants' fault, the attorneys just flaked out on them and no one told them what to do. They may not have been in court, but it turned out they had been around; however, through no fault of their own, they didn't get told what to do for quite some time (in part because they were unfortunately relying solely on their flaky attorneys to let them know what was going on, and in part because other parties to all this weren't doing what they should have been to get things straightened out). In those situations, they eventually basically get a do-over. So I would say it depends on the situation, and I wasn't sure from the post how much of this was the attorney's/court's fault and whether it was a "real" escape.

Elizabeth Foley
Ass't Crim. D.A.
Galveston County

Thanks to all. I really appreciate the help. I will have the judge issue a capias and get the ball rolling. My guess is that the disbarred defense attorney (who is now deceased) never followed up with the defendant.

The Supreme Court yesterday addressed Pennsylvania’s fugitive forfeiture law.

They rejected the Third Circuit's refusal to honor the forfeiture of appeal by a death penalty appellant who had escaped. The Third Circuit had held that forfeiture would not apply in federal court because the statute allowed discretion to the trial court.

http://www.supremecourtus.gov/opinions/09pdf/08-992.pdf