NO. 07-11-00405-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 2, 2012
KELVIN OLIVER AKA KEVIN OLIVER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 361ST DISTRICT COURT OF BRAZOS COUNTY;
NO. 09-01849-CRF-361; HONORABLE STEVEN LEE SMITH, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On August 9, 2011, appellant Kelvin Oliver a/k/a Kevin Oliver was convicted of
theft of property of less than $1,500. He received a sentence, enhanced by prior
convictions, of four and one-half years confinement in prison. Appellant filed a notice of
appeal on September 2, 2011. Through orders of September 7, 2011, the trial court
released appellant on an appeal bond1 with the condition he report weekly to the
probation department.
1
Tex. Code Crim. Proc. Ann. art. 44.04(a) (West 2006).
By motion filed April 16, 2012,2 the State seeks involuntary dismissal of the
appeal, asserting appellant has escaped from custody.3 In an attached affidavit of
February 29, 2012, appellant’s surety states that appellant posted an appeal bond of
$50,000 on September 9, 2011, and was released. The surety further states appellant
could not be located after January 19, 2012, and appellant did not report according to
the terms of the bond agreement. The surety’s affidavit speaks also of the inability of
appellant’s family members to find him since late January. In a March 19, 2012,
affidavit also attached, a representative of the county sheriff’s office states that the
office has no record that appellant has been “back in custody” of the Brazos County
sheriff since his September 9, 2011 release. According to a certified copy of an April 4,
2012 judgment nisi attached to the State’s motion, appellant did not appear for a
hearing on March 9, 2012. The judgment also orders appellant’s bond forfeited and
sets the amount of bail required on re-arrest.
Appellate Rule 42.4 provides:
The appellate court must 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.
2
The appeal was transferred to this court in October 2011 by order of the
Supreme Court of Texas. Tex. Gov’t Code Ann. § 73.001 (West 2005). The appellate
record was completed by the filing of the reporter’s record here on March 5, 2012. No
appellant’s brief has been filed.
3
According to a certificate of service, the motion was served on appellant’s
counsel on April 11, 2012. We held the motion ten days, but have received no
response from appellant. Tex. R. App. P. 10.3(a).
2
Tex. R. App. P. 42.4. We have previously held that “escape from custody” as
contemplated by Rule 42.4 includes absconding while released on appeal bond. Porras
v. State, 966 S.W.2d 764, 765 (Tex.App.--Amarillo 1998, no pet.). Here, we are shown
by the State’s motion that appellant escaped from custody during the pendency of his
appeal and did not voluntarily return to lawful custody in Texas within ten days of
escaping. As noted, appellant made no response to the State’s motion. We grant the
State’s motion and dismiss the appeal. Tex. R. App. P. 42.4.
James T. Campbell
Justice
Do not publish.
3