Over the years this State has searched for a rational public policy concerning the right to prosecute an appeal by one who escapes from custody after conviction.1 Valid considerations include discouraging escapes and encouraging voluntary surrenders, *Page 671 and promoting efficient and dignified operations of an appellate court. Estelle v. Durrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975). Accordingly, the Court held that when an escapee surrendered or was recaptured before the appellate record was filed the Court lacked jurisdiction, power or authority to dismiss the appeal on account of escape. The theory was that until the appellate record was filed the jurisdiction of this Court did not attach, so a prior escape and recapture or surrender did not occur, in terms of the statute, "pending an appeal." Austell v. State, 638 S.W.2d 888 (Tex.Cr.App. 1982); Webb v. State, 460 S.W.2d 903 (Tex.Cr.App. 1970); McGee v. State, 445 S.W.2d 187 (Tex.Cr.App. 1969). See also Cushman v. State, 493 S.W.2d 159 (Tex.Cr.App. 1973).
Dissatisfied with or ignoring past public policy considerations, framers of the 1981 amendment to Article 44.09, V.A.C.C.P., substituted "after giving notice of appeal" for "pending an appeal," thereby changing results in past judicial decisions. Today, the Court follows the legislative lead.
In the instant cause, literal application of the statute produces an exceedingly harsh and unjust result — considering notice of appeal was given August 20, 1980 and the appellate record was filed October 29, 1981, but not until February 15, 1984 did the court of appeals render its decisionthat evidence is insufficient to support the verdict of thejury and concomitant judgment of conviction.
Surely unaware that eleven days earlier the court of appeals had reversed his conviction, appellant escaped from custody in the Walls Unit February 26, 1984! He was captured and returned to custody within two days — before the State filed its motion for rehearing on March 1, 1984, and then its motion to dismiss on March 6, 1984.
As applied to appellant Article 44.09, supra, exacts a heavy toll: confinement for up to twenty years for an offense the State has yet to prove beyond a reasonable doubt he committed, according to an appellate court.
However strong the temptation to don Chancellor's robes and do equity, as well as the court of appeals we are constrained by legislative enactment from relieving appellant of fateful consequences of his shortlived escape.2
Accordingly, I join the judgment of the Court.
"Sec. 31. In case the defendant, pending an appeal in a felony case, shall make his escape from custody, the jurisdiction of the court of criminal appeals shall no longer attach to the case; and upon the fact of such escape being made to appear, the court shall, on motion of the. . . . attorney representing the state, dismiss the appeal; but the order dismissing the appeal shall be set aside, if it shall be made to appear that the accused has voluntarily returned to the custody of the officer from whom he escaped within ten days."Id., at 38, 10 Gammel's Laws of Texas 398, 402. (All emphasis is mine throughout unless otherwise indicated.)
In 1933, however, the Legislature found operation of its rule "harsh and unjust" in death penalty and life imprisonment punishments, and permitted the Court in exercise of its discretion to reinstate an appeal "if the defendant isrecaptured or voluntarily surrenders within thirty days after such escape." Acts 1933, 43rd Leg., Ch. 34, p. 64.
Those legislative views were retained in Article 40.09, V.A.C.C.P., when the code of criminal procedure was revised in 1965, and the Court seems to have been fairly lenient in applying them where an escapee had been returned to custody before a motion to dismiss was considered: e.g., McNeilv. State, 128 Tex.Crim. R., 80 S.W.2d 995, 996 (1935);Leonard v. State, 53 Tex.Crim. R., 109 S.W. 149, 150 (1908). They were to be altered drastically, however, by Acts 1981, 67th Leg., Ch. 291, p. 815, § 128, amending Article 44.09, supra.