Escaping Before Appeal and Then Voluntarily Returning to Custody

According to Rule 42.4, an appellate court "must dismiss an appeal on the State's motion, supported by affidavit, showing that the appellant has escaped from custody pending appeal and that to the affiant's knowledge, the appellant has not, within ten days after escaping, voluntarily returned to lawful custody." Though escape can be a criminal offense, the Texas Court of Criminal Appeals has made it clear that the penal offense does not necessarily establish the parameters of "escape from custody" contemplated under Rule 42.4. See Luciano v. State, 906 S.W.2d 523, 524-25 (Tex. Crim. App. 1995). In other words, the definition of escape found in the Penal Code is not necessarily the definition of escape under the aforementioned rule. Rather, we are to afford the concept (as it exists in the appellate rules) its "commonly-accepted meaning." Id. at 524. The Luciano court, in describing "commonly-accepted meaning," stated that escape connoted an unauthorized departure from custody. See id. at 524. Moreover, custody, according to the court, was an elastic term that included not only actual physical detention or imprisonment, but also the power to actually imprison or take into physical possession. See id. at 524-25. Implicit within each example given by the court is the notion that the individual is not free to exercise his liberty or that his liberties are being restrained via legal process.