NO. 07-03-0407-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D OCTOBER 12, 2005

______________________________ JOE PEREZ MARTINEZ, JR., APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 100 TH DISTRICT COURT OF DONLEY COUNTY; NO. 3141; HONORAB LE DAVID M. MCCOY, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION Appellant

Joe Perez Martinez, Jr. appeals his conviction for the felo ny offense of escape and jury-assessed punishment of twenty years confinement and fine of $10,000. We will affirm.
The facts giving rise to appel lant’s prosecut ion bega n when h e was cha rged with driving while intoxicated in Hall County. Appell ant was r e leased on bond in early May 2002. Attorney Dale Rabe was appointed to represent appellant in that proceedi ng . On1 In fact, no warrant had yet been issued for appellant’s arrest. Stewart did notknow

who he h ad spoke n to in th e Hall C ounty Sh eriff’s D epartment

. 2 November

14, 2002, the surety on that bond filed an affidavit surrendering appellan t and s eeking his a rrest. The trial court in that proceeding signed an o rder attached to the affidavit directing the cler k to issue a capias for the appellant’s arrest. The a ffidavit and order were filed the next day and a warrant was issued November 17, 2002.
The bond surety informed Donley County d eputy she riff Joe Stewart on November 14 that appellant was wanted in Hall County. Stewart called the Hall County Sheriff’s office and confirmed appellant was wanted. 1 The same evening he located appellant at a house in the town of

Hedley. While i n the hou se Stewa rt told ap pellant he would “have to come with me, that I had a warrant for his arre st.” Stew art did n ot placehandcuff s on appellant but “took him by the arm” and led him to the marked patrol car outside . Appellant asked for permission to gi ve his walle t to a resident of the house and was allo wed to do so. Appellant

also asked Stewa rt “What ar e you arre sting me for?” When Stewart led appellant to the passenger side of the patrol car, appellant bo lted and ig no red Stewa rt’s orde r to stop. He was subsequently captured and charged with the felony o ffense of escape. See Tex. Pen al Code Ann. § 38 .06 (Vern on 2003)

. After a jury trial at which he was represented by attorney Rabe, appellant was found guilty and sentenced in accordance with the jury’s verdict. He now presents four points of error on appeal in which he ar gues ( 1) he was denied due process because h is counsel had less than ten days to prepare for trial, (2) and (3) the evidence was legal ly and factually insufficientto suppo rt his con victi on for escape, a nd (4) thetrial co urt erred in faili ng to3

grant his motion for directed verdict on the ground that no warrant had been issued for his arrest. Appellant’s first pointrelies on the statutory right, established by Article 1.051(e) of the Code of Criminal Procedure (Vernon 2005), to have appointed counsel afforded a minimum of ten days to prepare for a proceedi ng. His argument is based on the fact his counsel Rabe was not

formally appointed to represent him in the escape prosecution until July 24, 2003, an d the tria l began July 30, 2003.
Courts applying Article 1. 05 1(e) focus on the actual preparation time provided appointed counsel, no t the timeof formal appoint ment. See Marin v. State , 891 S.W.2d 267 (Tex.Crim.App. 1994)

. Here, as noted, attorney Rabe previously had been a ppointed by the sa me court to represent appellant in the original driving while intoxicated charge. Appellant’s indictment on the escape charge was filed January 24, 2003. A May 19, 2003 Donley County docket listed Rabe as counsel for appellant on the escape charge. Rabe acknowledged receiving the docket, although he was not present in court on that date. The record also contains a letter from the trial court to Rabe dated June 11, 2003 setting the escape case for trial on July 28, 2003 , a nd a lternatively for July 30. The record further indicates the prosecutor sent discovery material to Rabe on June 19, and on dates later in June. Rabe conducted ple a negotiations which contemplated dismissal of the escape charge in exchange f or a plea of guilty of driving while intoxi cated. The trial court did not err in finding trial counsel4

was afforded sufficie nt prepar ation tim e to sati sfyArticle 1.051(e). We overrule appellant’s first poi nt of erro r. Appellant’s second and third points chal lenge the sufficiency of the evidence supporting the jury’s verdict of guilt. The standards by whi ch we must review challenges to the sufficiencyof evidence are so well established their recitation here is unnecessary. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (197 9); Clewis v. State , 922 S.W. 2d 126 (T ex.Crim. App. 199 6). The offense of escape is defined in Section 38.06 of the Penal Code. It provides: (a) a person commits an offense if he escapes from custody when he is: (1) under arrest for, charged with, or convicted of an offense; or (2) in cu stody pur

suant to alawful order of acourt.
Tex. Pen. Code Ann. § 38.06 ( V ernon 2005). Section 38.01(1) defines custody to mean “under arrest by a peace officer or under restraint by a public servant pursuant to an o rder of a court of this state or another state of the Unit ed States

. . . .” Te x. Pen. C ode Ann. § 38.01(1) (Vernon 2005). Escape is defined as “unauthorize d departure from custody

. . . .” Id . at § 38 .01(2). Appellant

argues the evidence was insufficient to establish he was in custody within the meaning of Section 38.06. He relies on Me dford v. State , 13 S.W.3d 769 (Tex.Crim.App. 2000), for the proposition that a detention short of a completed arrest will not support a conviction for escape . I n Medford , an officer told Medford he was under2 See also Mo r ris v. Sta te , 696 S.W.2d 616 (Tex.App.–Houston [14 th Dist.] 19 85), aff’d , 739 S.W. 2d 63 (Te x.Crim.A pp. 1987 ). 5 arrest and beg an to put handcuff

s on him. As the officer grasped Medford’s arm, he broke free and fled

. Medford , 13 S.W.3d at 771. The Court of Criminal Appeals held an officer’s expressed intent to arrestis insu fficient, there must be a restricti on on theperson’ s liberty of movement. Id. at 773. Such a restriction is n ot limited to that achieved by physical contact. A susp ect’s sub mission to an offi cer’s aut hority ca n establ ish arres t. Id. The United States S upreme Co urt has ad opted thi s view. Californ ia v. Hod ari , 499 U.S. 621, 626, 111 S.Ct. 154 7, 113 L. Ed.690 (1 991). Appellant argues the ev idence sh owed no completed arrest because Deputy Stewar t did not successful ly restrict his liberty of movement. We disagree. The evidence established both Deputy Stewart’s physical control over appell ant and a ppell ant’s submission to authority. Stewart exercised physical control by leading appellant out of the house by the arm. Appellant’s submission to Stewart’s authority was shown by his asking permission to give his wal let to an other. We overrule appellant’s second and third points.
In his fourth po int, appellan t assigns error to the denial of his motion for directed verdict on the basis that he was not in custody because no warrant for his arrest had been issued on Nove mber 14, 2 002. He acknowl edges the existen ce of P enal Cod e Section 38.08 stating it is no defense to the offense of escape that the custody was illegal, 2 but nonetheless argues he could not be in custody because no warrant had been is sued. We find no merit in the argum ent. Appellant’s contention that no warrant had bee n issued is a challenge to the legality of the arrest, making Se ction 38.08 applicable. We ov erru le6

appella nt’ s fourth point of error. Finding no reversible error in the judgment of the trial court, weaffirm tha t judgment

.

James T. Campbell Justice
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