concurring.
We are reviewing a judgment of the court of appeals to determine whether, as applicant claims in his sole ground for review:
The court of appeals erred in granting the State’s motion to dismiss appellant’s appeal, for the reason that appellant had not escaped from custody as contemplated by TRAP 60(b).
See Luciano v. State, 855 S.W.2d 882 (Tex.App.-El Paso 1993).1
The majority blurs critical facts of this matter on the first page of its opinion. A chronology of events pertinent to resolution of issues presented by the ground for review is collated in the margin.2 So far as this record shows applicant is still at large.
I
Early on our caselaw made clear that escape before sentence does not affect the right of appeal nor the jurisdiction of this Court. McGee v. State, 445 S.W.2d 187, at 188 (Tex.Cr.App.1969).3 Then as now the trial court does not lose, and the appellate court does not acquire, jurisdiction until the appellate *527record is filed in the appellate court. Article 44.11, V.A.C.C.P.1965, now TRAP Rule 60(b)(2); Cushman v. State, 493 S.W.2d 159 (Tex.Cr.App.1973); McGee v. State, supra. Stated conversely, like former statutes the current rule authorizes only the appellate court to dismiss the appeal of a defendant who escapes after giving notice of appeal, but not until the record is filed in the appellate court. Austell v. State, 638 S.W.2d 888, at 889 and 890 (Tex.Cr.App.1982). This Court consistently distinguished the pre-appeal rule from post-appeal situations. See, e.g., Webb v. State, 449 S.W.2d 230 (Tex.Cr.App.1969); Redman v. State, 449 S.W.2d 256 (Tex.Cr.App.1970); Ballage v. State, 459 S.W.2d 823, at 824 (Tex.Cr.App.1970).
The court of appeals found, and the fact is undisputed, that applicant left custodial supervision on April 8, the day the habeas court heard his application for discharge from probation. Luciano v. State, supra, at 883; see note 2, ante. The judge presiding signed the order denying relief on April 12. Through counsel, applicant gave written notice of appeal on April 19;4 the record was not filed until May 4. See note 2, ante. Manifestly, then, his appeal was not “pending” on April 8 when appellant “escaped from custody,” as TRAP Rule 60(b) contemplates — indeed, requires — as a condition for an appellate court to acquire exclusive jurisdiction to dismiss an appeal on that ground. Austell v. State, supra at 889; Cushman v. State, supra; McGee v. State, supra, at 189; cf. Bullock v. State, 709 S.W.2d 669, at 670 (Tex.Cr.App.1986) (construing former article 44.09 as amended in 1981 to read “after notice of appeal” rather than “pending appeal” as it formerly provided and now in Rule 60(b) again provides).5
Facially the State’s motion to dismiss appeal was and is without merit. The affidavit in support of its motion plainly reports that on April 8, eleven days before notice of appeal and some twenty-five days before the record was filed, applicant “absconded” from custodial supervision and “his whereabouts remain unknown.”6 The court of appeals accepted the same as “uncontroverted evidence.” Luciano v. State, at 883. Thus the same uncontroverted evidence proves that applicant did not depart from custody “pending the appeal.”
Therefore, the determination of the El Paso Court of Appeals that dismissal was “required” under Rule 60(a) is erroneous un*528der the facts and the law. McGee v. State, supra, at 190 (escape before sentence [or order denying relief] does not affect right of appeal nor jurisdiction of appellate court).7 See Ortiz v. State, 862 S.W.2d 170, at 172-173 (Tex.App.-San Antonio 1993) no PDR; Marquez v. State 795 S.W.2d 346 (Tex.App.-Waco 1990) no PDR.
II
Escape before (or after) an appeal is pending “does not strip the case of its character as an adjudieable case or controversy.” Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). In his appellate brief counsel for applicant advances three viable points of error against the order of the habeas court denying relief. Putatively he was entitled to have them decided by the court of appeals pursuant to TRAP Rule 44. See Ex parte Twyman, 716 S.W.2d 951, at 952 (Tex.Cr.App.1986).
When the habeas court denied relief, effectively remanding him to custody, applicant was then also entitled to be enlarged on bail pending decision on appeal. Article 44.35, V.A.C.C.P.. However, it does not appear from the record that applicant sought bail. The applicable rule in such habeas cases is that in the absence of a showing applicant was in custody or released from custody on bail pending appeal the appellate court is without jurisdiction to entertain the appeal. Ex parte Dixon, 452 S.W.2d 453 (Tex.Cr.App.1970); Ex parte Hawthorne, 151 Tex. Cr.R. 283, 207 S.W.2d 408 (1948); see generally Ex parte Quinn, 549 S.W.2d 198, at 199 (Tex.Cr.App.1977).
For the reasons stated herein the decision of the court of appeals to dismiss the appeal is ultimately sustainable. Accordingly, I join the judgment of the Court, but not its opinion.
McCORMICK, P.J., and MALONEY and MEYERS, JJ., join.. A signed order denying relief on habeas corpus is an appealable order regulated by the general rules requiring notice of appeal in criminal cases. See TRAP rules 40(b) and 41(b). Otherwise appellate procedure on habeas corpus is provided in TRAP Rule 44.
Thus the clerk of the court of appeals properly treated this appeal as a “priority” matter in accordance with TRAP Rule 44. Such an appeal is to be heard and determined "upon the facts arising from the record,” and the objective of the appeal is “to do substantial justice to the party appealing.” Id., 44(b). The appellate court is authorized and mandated to render such judgment and make such orders "as the law and the nature of the case may require.” Id., 44(c).
Much of the law regarding dismissal of an appeal on account of escape from custody "pending the appeal,” TRAP Rule 60(b), was developed in caselaw construing statutes relative to ordinary appeals from a judgment of conviction. Accordingly, reviewing courts may draw on such germane opinions in deciding habeas matters. See, e.g., Ex parte Reid, 581 S.W.2d 686, at 687 (Tex.Cr.App.1979) (extradition); Ex parte Bradshaw, 527 S.W.2d 571 (Tex.Cr.App.1975) (bail); Holliday & Parker v. State, 482 S.W.2d 215, at 216-217 (Tex.Cr.App.1975) (conviction, citing a host of mixed cases); Ex parte Wood, 19 Tex.App. 46 (1885) (bail); see also Ex parte Pate, 21 Tex. App. 190, 17 S.W. 460 (1886), and Pate v. State, 21 Tex.App. 191, 17 S.W. 461 (1885) (conviction).
. March 19; Court modifies terms and conditions of probation to custodial supervision while applicant resides in Court Residential Treatment Center;
April 5: Applicant applies for writ of habeas corpus, alleging he has discharged term of probation;
April 8: Court hears application; applicant departs custody;
April 12: Court signs order denying habeas relief;
April 19: Counsel for applicant gives written notice of appeal from order;
May 4: Transcript and statement of facts filed;
May 24; Counsel for applicant submits his brief;
May 26; State moves to dismiss appeal under TRAP Rule 60(b).
June 9: El Paso Court of Appeals dismisses appeal.
Emphasis above and throughout is mine unless otherwise indicated.
.The Court cited, e.g., Walters v. The State, 18 Tex.App. 8 (1885). Therein on the same day his motion for new trial was overruled defendant gave notice of appeal; he escaped two days later; the judge had not yet pronounced sentence. Thus the Court held that appellate jurisdiction had not attached to the case at the time of escape because under former article 794, C.C.P.1879, the cause was still pending in the trial court. See also Hart v. The State, 14 Tex.App. 323 (1883); Taylor v. The State, 14 Tex.App. 340 (1883).
. Counsel for applicant asserts that after giving notice of appeal he was made aware that his client had left the Court Residential Treatment Center without permission. Appellant’s Brief, at 2. In resisting the State’s motion to dismiss appeal counsel expressly declines to concede that applicant's departure "constitutes an escape and divests the appellate court of jurisdiction.” Response to State’s Motion to dismiss Appeal, at 1. His position is that since applicant was still on unrevoked probation his alleged violation cannot be considered an escape under V.T.C.A. Penal Code, § 38.01(3), and thus TRAP Rule 60(b) is not applicable to his situation. Applicant relies on Grant v. State, 753 S.W.2d 185, at 186 (Tex.App.-Dallas 1988) no PDR, but the El Paso Court opined that Grant lacked distinguishing features controlling the instant cause that meet the definitions of "escape from custody” prescribed in V.T.C.A. Penal Code, § 38.01(2), for purposes of TRAP Rule 60(b). Luciano v. State, supra.
. In crafting TRAP Rule 60(b) we reinstated the clause "pending the appeal” in lieu of "after giving notice of appeal." Statutes and caselaw have long regarded giving notice of appeal as "a condition for perfecting an appeal,” a necessity for invoking appellate jurisdiction of a court. Former article 44.08, C.C.P.1965; C.C.P.1981. To link State’s motion to dismiss an appeal would create a serious conflict with the prevailing operative concept that the trial court retains jurisdiction over the case until the record is filed in the appellate court. TRAP Rule 40(b)(2); former article 44.11, C.C.P.1965. Even in the appellate court the State’s motion to dismiss for want of jurisdiction may not be made, filed and docketed until after a transcript is filed. TRAP Rule 72. Furthermore, Rule 60(b) preserves the vast storehouse of precedent developed over decades of judicial construction of statutes expressing basic considerations of public policy concerning the matter. See Bullock v. State, 709 S.W.2d 669 (Tex.Cr.App.1986) (Clinton, J., concurring, at 670-671). Moreover, this purely procedural rule does not abridge, enlarge, or modify any “substantive rights” of an appealing party within contemplation of V.T.C.A. Government Code, § 22.108(a).
.The affiant further avers that by virtue of his absconding appellant thus “violated the terms of his adult probation,” and claims that a bench warrant is needed in order that control may be reasserted over him.
. In its opinion the majority practically ignores our own statutory scheme and germane caselaw, resorting instead to dictionary definitions and excerpts from inapposite opinions of the Supreme Court of the United States. See Ortiz v. State, supra. Also, it cannot fairly be said of applicant that he "maligned the dignity of an appellate court” et cetera. Opinion, at 525. Applicant broke custody the day the habeas court denied relief, four days before the judge signed the order and eleven days before his lawyer gave notice of appeal — according to the latter, without knowing applicant had departed. From all appearances, on his own applicant simply took "French leave.”