Appeal is taken from a conviction for theft of property of a value of two hundred dollars or more but less than ten thousand dollars. Punishment, enhanced by a prior felony conviction, was assessed by the jury at twenty years. The Court of Appeals, in an unpublished opinion, dismissed appellant's appeal finding that appellant had escaped during the pendency of the appeal. Bullock v. State, (Tex.App. — San Antonio, No. 04-81-00385-Cr., delivered April 17, *Page 670 1985). We granted appellant's petition for review to examine this holding.
Article 44.09, V.A.C.C.P., provides:
"If the defendant, after giving notice of appeal, makes his escape from custody, the jurisdiction of the court of appeals or the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape being made to appear, the appropriate court shall, on motion of the attorney representing the state, dismiss the appeal and withdraw any prior opinion; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped; and in cases where the punishment inflicted by the jury or the court is confinement in an institution operated by the Department of Corrections for life, the court may in its discretion reinstate the appeal if the defendant is recaptured or voluntarily surrenders within thirty days after such escape. No appeal shall be dismissed as to any defendant to whom the death penalty has been assessed." Amendment by Acts 1981, 67th Leg., p. 815, ch. 291, sec. 128, eff. Sept. 1, 1981.
Appellant contends the Court of Appeals "improperly dismissed appellant's appeal because appellant had been returned to custody before the state filed its motion to dismiss." Appellant escaped from custody on February 26, 1984 and was returned to custody before the State filed its motion to dismiss on March 6, 1984. The record does not reflect nor is it urged that appellant voluntarily returned.
Counsel construes our holding in Edwards v. State,688 S.W.2d 566 (Tex.Cr.App. 1985) to hold that Article 44.09 requires that the State not only move to dismiss the appeal but that such motion be filed while the defendant is still an escapee and not after he is returned to custody.
Nowhere in Article 44.09, supra do we find any requirement that the motion to dismiss be filed while a defendant is still an escapee. In Edwards, unlike the instant case, a motion to dismiss was never filed by the State.
Appellant further urges that if a defendant escapes before the appellate court obtains jurisdiction the appeal cannot be dismissed. Appellant reasons "if the appellant escapes before the record is filed in the reviewing court and he is returned to custody before the record is filed the appeal will not be dismissed." Appellant's premise is based on Article 44.09, supra, prior to the 1981 amendment which provided for escape "pending appeal." See Austell v. State, 638 S.W.2d 888 (Tex.Cr.App. 1982). The 1981 amendment makes provision for the escape of a defendant "after giving notice of appeal."
We disavow any language in Edwards which may be construed to require that a motion to dismiss an appeal be filed with the reviewing court before the escapee is returned to custody.
The judgment of the Court of Appeals is affirmed.
WHITE, J., not participating.