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Click here for the full text of this decision FACTS:Grady Lewis Warner, appellant, was charged by indictment with the felony offense of escape. A jury found him guilty and assessed his punishment at confinement in the state penitentiary for a term of 12 years. On Jan. 3, 2004, Burleson County Sheriff’s Deputy Justin Royal was dispatched to investigate a domestic dispute in Cedar Creek. While en route to the location, the deputy was advised by the dispatcher that one of the parties to the dispute, Grady Warner, was wanted for a parole violation and a “blue” warrant had been issued for his arrest. When he arrived at the scene of the altercation, he observed several adults and children standing in front of a residence. The deputy stated to the group that he needed to talk to Grady Warner. Appellant identified himself and accompanied the deputy back to his patrol vehicle. There is a conflict in the testimony of the witnesses as to what happened next. The deputy testified that he placed both hands upon appellant’s arms and informed him he was under arrest for a parole violation. The deputy claimed he continued to grasp appellant’s wrist with his left hand and reached for his handcuffs with his right hand. At this moment, appellant broke free and ran into the nearby woods. Deputy Royal pursued appellant, but was unable to apprehend him. Because the deputy described his actions in the past continuous tense, the court of appeals states it is difficult to discern from his report whether the deputy was or was not in physical control of appellant at the time he bolted and ran. The deputy initially described the offense in his incident report as evading arrest, not escape. Both appellant’s brother and sister-in-law testified that they witnessed the incident and at no time did the deputy ever put his hands on appellant. HOLDING:Reversed and acquitted. When construing “custody” as that word is used in Texas Penal Code �38.06, the Texas Court of Criminal Appeals has imposed a high degree of restraint. For example, in Medford v. State, a police officer informed the defendant he was under arrest, grabbed his left arm, and reached for his handcuffs. 13 S.W.3d 769, 771 (Tex. Crim. App. 2000). At that instant, the defendant broke free of the officer’s grasp and fled. There, the court of criminal appeals held the defendant was not in “custody,” because an “arrest” is complete only “when a person’s liberty of movement is successfully restricted or restrained, whether this is achieved by an officer’s physical force or the suspect’s submission to the officer’s authority.” Of course, an escape can only occur where the officer is unable to successfully restrain the defendant. Thus, under the court of criminal appeals’ construction of the statute, no person may be prosecuted for escape where he succeeds in prying himself loose from the officer’s grasp, the court states. The facts presented here are indistinguishable from those presented in Medford, the court decides. “As an intermediate appellate court, we are obliged by stare decisis to follow the decisions of the court of criminal appeals. We recognize that our holding promotes crime by encouraging suspects to balk, pull away, defy, and even wrestle with the police who are attempting to effect an arrest. Moreover, we have grave doubts the legislature intended such a result. Were we writing on a clean slate, we might well decide the issue differently.” OPINION:J. Harvey Hudson, J.; Hudson, Fowler and Seymore, J.J.

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