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Click here for the full text of this decision FACTS:The appellant perfected her appeal after being sentenced in open court on Nov. 10, 2004. According to the state’s motion to dismiss this appeal and an attached affidavit, the appellant disappeared during her trial and the trial continued in her absence. However, the record discloses that she was captured around three years later and returned to Wheeler County. She was present for the pronouncement of her sentence in open court on (Nov. 10. HOLDING:Because the elements of Texas Rule of Appellate Procedure 42.4 have not been satisfied, the court denies the state’s motion to dismiss. Though the appellant was recaptured before the time period for perfecting an appeal began to run, the state argues that dismissal is appropriate under Rule 42.4. 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.” Here, while the record indicates that appellant escaped from custody during trial and the trial continued in her absence, the trial court did not pronounce sentence in open court until her capture and return to Wheeler County. Thereafter, she perfected her appeal. “[N]othing before us illustrates that she had absconded for any period of time during which her appeal pended, and it is this fact that distinguishes our situation from those in Ike v. State, 998 S.W.2d 323, 324 (Tex. App. – Houston [1st Dist.] 1999, no pet.) and Williams v. State, No. 05-03-01772-CR, 2004 WL 1110533 (Tex. App. – Dallas, May 19, 2004, no pet.) (not designated for publication). In both Ike and Williams, the appellant remained at large after their trial counsel perfected appeal.” OPINION:Per curiam; Quinn, C.J., Reavis and Campbell, JJ.

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