Scott v. State

CLINTON, Judge,

dissenting.

The offense allegedly committed by appellant is denounced in simple terms — one coming within a prescribed category commits an offense “if he escapes from custody.” The offense is a felony if he “is confined in a penal institution.” 1 V.T.C.A. Penal Code, § 38.07(a) and (c)(2).

Apparently, to make the offense a third degree felony the indictment in this cause alleged that appellant did “escape from confinement in the Taylor County Jail situated in the City of Abilene.” 2

Applying those parts of definition of “custody” and “escape,” V.T.C.A. Penal Code, § 38.01(2) and (3), that described appellant, the proof must show that while “under restraint by a public servant pursuant to an order of a court” he made an “unauthorized departure from [that] custo*467dy.” There is no doubt that appellant was under such restraint and that his enlarging a hole in a wall of the jail and moving through it to the outside was unauthorized. Thus, the question narrows to whether the evidence demonstrates what appellant did amounts to “departure of custody.”

But for existence of the chain link fence, topped with barbed wire, enclosing the yard and jail building, there would be no difficulty in finding that the moment he exited the hole in the wall appellant had departed from custody. But Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), decided under the former penal code since the offense had been committed in April 1973,3 is not even “see” authority for the majority; and though Judge Teague suggests in his dissenting opinion that Webb escaped from a building in which he was held prisoner, what the opinion reveals is that Webb and other trusties were painting offices on the sixth floor of a courthouse, each having been assigned a particular office by a jailer in charge of the paint detail. The circumstantial evidence showed that Webb opened wider an office window, climbed through and leaped or fell to a fourth floor roof; he was found lying with a broken leg on a third floor roof. The Webb Court never indicated that appellant “broke jail” in the traditional sense; rather it merely found evidence was sufficient to show his intent to commit the offense of escape without explicating any rationale for its finding, Webb, at 787-788. If Webb has application to the case at bar, it can only be that a prisoner need not be within the physical confines of jail itself in order to depart from custody. Thus, the significance of the enclosure bounded by a chain link fence, topped with barbed wire, with a closed but unlocked gate in it.

With all that in mind, I am not only unable to agree with the majority reasoning that jail walls were necessarily the bounds of custody and once he violated the wall “appellant was no longer in the custody of the sheriffs office,” but also am concerned that drawing bounds of custody at the exterior side of a jail wall in this case is dangerous precedent for other situations not yet confronting the criminal justice system in which “custody” must be extended beyond the jail wall to show a completed escape rather than just an attempt.

In the instant case the key ingredient of “custody” is “restraint,” § 38.01(2). Though not in our Penal Code, the term is defined by Article 11.22, Y.A.C.C.P., viz:

“By ‘restraint’ is meant the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.”

See Black’s Law Dictionary (Revised Fourth Edition) 1477: Restraint is “confinement, abridgement, or limitation. * * * Hindrance, confinement, or restriction of liberty.” Common usage includes “a device that restricts movement,” Webster’s New Collegiate Dictionary (G. & C. Merriam Co. 1979). A fence such as that shown by the evidence here is designed, erected and, in my view, intended to embrace within its closure the whole of restraint by the public servant in charge of the facility.

Looking objectively at the matters of record in this cause, to make his departure from custody, appellant still had to get outside that fence. It is not enough for the jail administrator to say that appellant was “confined to the jail building” and, therefore, he was “not authorized to depart from his detention in the jail building itself.” 4 As used in the statute, custody by *468restraint is conceptualized as one perimeter from which one does not depart while still within one of its interior segments. Restraint is like a maze: though one may find his way through some of its rooms and corridors, it cannot be said that he has departed from the maze until he exits the last one. A prisoner who manages to leave his cell without authority, but fails to make his way out of the jail itself, may have made an unauthorized departure from his designated place, but he has not yet departed from custody by restraint.

For these reasons I am not persuaded that the State has proven that appellant escaped from custody within the meaning of § 38.07. Whether the evidence shows attempt to commit the offense of escape ought to be left for another day.

I respectfully dissent.

. All emphasis is added by the writer of this opinion unless otherwise indicated.

. Whoever drew up the indictment evidently equated "custody” and “confinement,” since it is not alleged that appellant escaped from "custody." The notion is erroneous, of course, for the statutory felony offense sought to be alleged demands that escape from custody be by one then confined in a penal institution. Had that distinction been noted at the outset perhaps some of the problems that now challenge solution would not be here. In any event, we need not further concern ourselves with a "confinement” aspect; that appellant was confined in the Taylor County Jail is undisputed.

. Article 353b, P.C.1925, as amended, made it an offense for any prisoner "while confined in jail or while permitted at large as trusty, or while in the lawful custody of any officer” to escape or attempt to escape. We are not informed by the Webb opinion of what the indictment alleged his precise status to be in committing the offense, although he was a trusty at the time.

. The kind of "detention” included in the statutory definition of "custody” is other than "under restraint,” for conditions of custody are serially stated: “detained or under arrest by a peace *468officer or under restraint by a public servant pursuant to an order of a court." Accordingly, we are not here concerned with detention but with restraint.