COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SEAN GARISON MCNERTHNEY,

 Appellant, 

v. 

THE STATE OF TEXAS, 

 Appellee. 

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No. 08-23-00012-CR

Appeal from the 

226th Judicial District Court

of Bexar County, Texas 

(TC# 2020CR11691) 

MEMORANDUM OPINION

A jury found Appellant Sean Garison McNerthney guilty of assault causing bodily injury 

against a family member (second offense) and assessed a punishment of imprisonment for three 

years and six months. After Appellant filed his notice of appeal challenging his conviction, the 

State filed a motion to dismiss the appeal pursuant to Rule 42.4 of the Texas Rules of Appellate 

Procedure because Appellant escaped from custody. See TEX. R. APP. P. 42.4. No response to the 

State’s motion has been filed and Appellant has not otherwise opposed the motion. For the

following reasons, we grant the motion and dismiss the appeal.1

1 This case was transferred from our sister court in San Antonio, and we decide it in accordance with the precedent of 

that court to the extent required by TEX. R. APP. P. 41.3. 
2

Rule 42.4 states that we “must dismiss an appeal on the State’s motion, supported by 

affidavit, showing that the appellant has escaped from custody pending the appeal and that to the 

affiant’s knowledge, the appellant has not, within ten days after escaping, voluntarily returned to 

lawful custody within the state.” Id. When determining whether an appellant has “escaped” under 

Rule 42.4, we apply the term’s commonly accepted meaning. Hayes v. State, No. 14-20-00580-

CR, 2020 WL 6278598, at *1 (Tex. App.—Houston [14th Dist.] Oct. 27, 2020, no pet.) (mem. op., 

not designated for publication) (per curiam) (citing Luciano v. State, 906 S.W.2d 523, 524–25 

(Tex. Crim. App. 1995)). “Custody” means “actual physical detention or imprisonment, as well as 

the power to actually imprison or take into physical possession.” Id. (citing Luciano, 906 S.W.2d 

524–25). “Implicit within each example [of custody] is the notion that the individual is not free to 

exercise his liberty or that his liberties are being restrained via legal process.” Id. (citing Porras v. 

State, 966 S.W.2d 764, 765 (Tex. App.—Amarillo 1998, no pet.)). To that end, a defendant who 

has been released on bond is considered to have his liberties restrained. Id. (citing Ex parte 

Robinson, 641 S.W.2d 552, 553–54 (Tex. Crim. App. 1982)).

Here, the record indicates that Appellant, having been on bond during the trial, absconded 

after the parties completed their voir dire examinations. According to the State’s two affidavits 

filed in support of its motion to dismiss, the trial court subsequently issued a warrant for 

Appellant’s arrest on December 8, 2022. The affidavits state that Appellant is currently located at 

the Hennepin County Jail in Minnesota and that he has not voluntarily returned to lawful custody 

in the State of Texas within ten days of escaping from custody. Because Appellant was on bond 

when he absconded, his liberties were restrained and he was in custody as contemplated by Rule 

42.4. See TEX. R. APP. 42.4; Hayes, 2020 WL 6278598, at *1 (defendant who was on bond at the 

time of escaping was in custody under Rule 42.4). And because the affidavits state that Appellant 
3

has not voluntarily returned to lawful custody in Texas within ten days, he has escaped for purposes 

of Rule 42.4. See Hayes, 2020 WL 6278598, at *1 (defendant who failed to appear for court 

appearance while on bond escaped under Rule 42.4).

For these reasons, we conclude that Appellant has escaped from custody under Rule 42.4

and has not voluntarily returned to lawful State custody within ten days of escaping. We therefore

grant the State’s motion to dismiss the appeal.

LISA J. SOTO, Justice

June 22, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)