dissenting.
Scott Patrick Scott, appellant, was convicted by the trial court of committing the offense of escape. See V.T.C.A., Penal Code, Section 38.07, which provides: “A person arrested for, charged with, or convicted of an offense commits [the offense of escape] if he escapes from custody.”
[Emphasis Added].
I believe that when the Legislature of this State enacted the provisions of Section 38.07, supra, it intended for those provisions to be applied only in the event that the prisoner had departed from the geographical limits of his custody, and not merely from the limits of his confinement. Of course, the Legislature could have easily stated that an escape occurs when one escapes from the geographical limits of his confinement. But, it did not do so. One obvious reason the Legislature did not do so lies in the fact that prisoners who are housed in county jails usually remain there for short periods of time, and are given a great deal of freedom of movement. Thus, the handling of prisoners kept in a county jail is much different from the handling of prisoners who are kept in the penitentiary.
The majority holds that the evidence is sufficient to sustain appellant’s conviction for the offense of escape. Because I believe that the evidence only established an attempted escape from custody, and not an escape from custody, I must respectfully dissent.
The indictment in this cause alleges in pertinent part that appellant “did then and there unlawfully, intentionally and knowingly escape from confinement in the Taylor County, Texas jail situated in the City of Abilene.” [Emphasis Added],
Section 38.07, supra, provides that the offense of escape occurs when one escapes from “custody.” However, the State did not allege that appellant escaped from “custody,” but, instead, alleged he escaped from “confinement.”
The Legislature of this State has specifically defined the word “escape” to mean the following: “ ‘Escape’ means unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose or limited period, but does not include a violation of conditions of probation or parole.” Y.T.C.A., Penal Code, Section 38.01(3). [Emphasis Added]. In this instance, we are only concerned with the first mode of escape, unauthorized departure from custody.
The Legislature has also specifically defined the word “custody” to mean “detained or under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court.” Section 38.01(2). [Emphasis Added]. In this instance, prior to the time of the alleged escape, the trial court had remanded appellant to the custody of the Sheriff of Taylor County until the Sheriff could transfer appellant to the penitentiary. There is nothing in the record regarding specifics as to just where appellant would actually be kept by the Sheriff until he was transferred to the penitentiary, or what the conditions of his confinement would be while he was in the custody of the Sheriff of Taylor Coun*469ty. For reasons not reflected in the record, while appellant was awaiting transfer to the penitentiary, someone designated him to be a “trusty.”
Even though the State used the word “confinement,” and not the word “custody,” in the indictment, because the offense of escape is committed only if one escapes from custody, it became incumbent upon the prosecution to establish that appellant escaped from the custody of the Sheriff of Taylor County.
The Taylor County jail, whose keeper is the Sheriff of Taylor County, see Art. 5116, V.A.C.S., consists of a four-story brick structure that is enclosed by a chain link fence with barbed wire strung on the top of the fence. Appellant was captured outside of the building in a grassy area that was between the building and the fence. It is uncontroverted that appellant never got outside of the fenced-in portion of the complex.
The majority holds that the above evidence is sufficient to establish that appellant escaped from the custody of the Sheriff of Taylor County. However, in reaching its result, it never makes a distinction between the terms “custody” and “confinement,” nor does it discuss the differences between the meaning of the terms.
The majority opinion states the following: “The testimony revealed that while the yard was part of the Taylor County jail facilities, inmates were not allowed to leave the building at any time unless accompanied by a deputy. The fenced yard was not part of a trustee’s assigned area... Appellant was not authorized to depart from his detention in the jail building itself.” To me, even if the record did reflect that appellant was personally informed of these internal orders, which it does not, such would only show violations of internal orders governing confinement, and not escape from the custody of the Sheriff of Taylor County. Can there be any doubt that in this instance the grounds outside of the building that were enclosed by the fence were under the control of the Sheriff of Taylor County? If so, as long as appellant remained inside of the fence, how can it be said that he escaped from the custody of the Sheriff of Taylor County? See People v. Lakin, 118 Mich.App. 471, 325 N.W.2d 460 (1982), where it was held that the term “prison” includes the grounds of the prison. I believe that where a county jail is enclosed, as here, the term “county jail” includes the enclosed grounds.
The majority opinion advises us to “See Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976).” After re-reading Webb v. State, supra, I find that if the majority is actually relying upon that decision as authority for sustaining appellant’s conviction, because of the factual differences between the two cases, its reliance is sorely misplaced.
The facts stated in Webb v. State, supra, reflect that the defendant in that cause was captured on the outside of the building that houses the Jefferson County Courthouse, in which prisoners, including the defendant, were kept. The building also served as quarters for what is usually found in most courthouses of this State, namely, courtrooms and offices of county and state officials. The opinion indicates that the grounds of the courthouse were not enclosed. In the case at bar, however,the Taylor County Jail Complex was enclosed by a chain link fence.
The facts in Webb also reflect that the defendant was captured by the authorities on the outside of the building. When captured, the defendant was suffering from a broken leg which he had apparently sustained after he had jumped from the outside of the building on the sixth floor level of the building and landed on the fifth floor level of the building, or had broken his leg after he had jumped from the outside of the building on the fifth floor level of the building and landed on the fourth floor level of the building.
By what is stated in Webb, it is obvious to me that the geographical boundaries of the Jefferson County Jail were the outside walls of the building. Thus, once it was established that the defendant Webb was found outside of the building without au*470thority to be there, this established that he had escaped from the custody of the Sheriff of Jefferson County. In this cause, however, the geographical boundaries of the Taylor County Jail Complex were not limited to the outside walls of the building, but included the grounds that were enclosed by a chain link fence which had barbed wire strung out on the top of the fence. I find that the fence which enclosed the Taylor County Jail Complex was the outside geographical boundary of the Taylor County Jail.
Thus, the bright line distinction, which the majority overlooks, between the facts in Webb and here is that in this cause the Taylor County Jail Complex was enclosed by a chain link fence with barbed wire strung out on the top of the fence, whereas the Jefferson County Jail was not so enclosed. It is therefore obvious that the geographical boundaries of the Jefferson County Courthouse building were the outside walls of the building, whereas here the boundaries were set by the chain link fence which surrounded the jail complex.
The record is clear that appellant was captured before he had removed himself from the geographical limits of the Taylor County Jail Complex. Thus, at the time appellant was captured, he was still in the lawful custody of the Sheriff of Taylor County, and had not completely escaped therefrom.
I have no doubt whatsoever that appellant committed the offense of attempted escape, but, contrary to the majority opinion, I also have no doubt that he is not guilty of committing the offense of escape. Therefore, I dissent to the majority erroneously affirming appellant’s conviction for escape.