Comment

Culpable Mental State.  Tex. Penal Code § 38.06(a) does not prescribe a culpable mental state to the offense of escape, so sections 6.02(b) and (c) apply. Section 6.02(c) suggests recklessness is sufficient. There is, however, a complication.

While a culpable mental state applies to the basic conduct element—escaping—sec-tion 6.03(c) provides no definition of recklessness as it might apply to elements consisting of the nature of the conduct.

The Committee decided this indicates the legislature did not intend recklessness to apply, at least to the nature of conduct element. Consequently, the instruction requires the defendant to have acted intentionally or knowingly.

If the offense under Tex. Penal Code § 38.06(a) covers a person who escapes while being “lawfully detained for . . . an offense,” does the culpable mental state apply to this circumstance element, and specifically does it require the person have some awareness that the detention is “lawful”? The Committee concluded the Texas courts are unlikely to construe the culpable mental state requirement so as to demand awareness of the law defining when a detention is lawful. As a result, the instruction assumes the culpable mental state applies only to the nature of conduct element—the conduct of escaping.

Application to Persons Lawfully Detained but Not Arrested When They Escaped. Careful analysis of the requirements of escape raises some doubts as to its coverage following changes made to the Penal Code in 2011, as well as questions concerning how the basis of these doubts should be reflected in the jury instruction.

The problem arises because Tex. Penal Code § 38.06(a) appears to impose two sets of requirements. First, the state must prove the defendant escaped from custody; custody is defined in Tex. Penal Code § 38.01(1). Second, the state must prove the escape occurred when the person was within one of the three categories set out in section 38.06(a)(1)–(3). In most situations arising from events in the field, the state relies upon section 38.06(a)(1). This requires proof that, at the time of the escape, the accused was under arrest for an offense, lawfully detained for an offense, charged with an offense, or convicted of an offense.

Under the pre-2011 statute, Tex. Penal Code § 38.06(a)(1) required the person be “under arrest for, charged with, or convicted of an offense.” In Warner v. State, 257 S.W.3d 243 (Tex. Crim. App. 2008), the court of criminal appeals held that where the defendant was not charged with or convicted of an offense, an “escape can occur only after an officer has successfully restrained or restricted a suspect—that is, when the officer’s grasp has amounted to an arrest.” Warner, 257 S.W.3d at 247. In Warner, a conviction for escape was held unsupported by the evidence when the officer grabbed the defendant Warner but could not subdue him. Since Warner was not successfully arrested, he was not in custody by virtue of an arrest.

In 2011, the legislature amended Tex. Penal Code § 38.06(a)(1) by adding the phrase lawfully detained for. Acts 2011, 82d Leg., R.S., ch. 1330, § 1 (S.B. 844), eff. Sept. 1, 2011. Apparently the intent was to cover persons like Warner who might be said to have escaped from detention although not from a completed arrest. The legislative history of the revision makes clear that this was its intention: “Senate Bill 844 amends the Penal Code to expand the conditions that constitute the offense of escape from custody to include escaping from custody while lawfully detained for an offense.” S.B. 844, 82d Leg., R.S., Enrolled Bill Summary.

The 2011 legislation did not, however, alter the definition of custody in Tex. Penal Code § 38.01(1). Section 38.06(a) still requires proof the defendant “escape[d] from custody.” Under section 38.01(1), custody exists if the person is:

1. (a) under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court of this state or another state of the United States; or
2. (b) under restraint by an agent or employee of a facility that is operated by or under contract with the United States and that confines persons arrested for, charged with, or convicted of criminal offenses.

Tex. Penal Code § 38.01(1). If a person who escaped was lawfully detained for an offense but was not under arrest for that offense, the person has not escaped from custody.

A person like Warner seems to escape when he is “lawfully detained for . . . an offense.” But he seems not to escape from custody given the definition of that term in section 38.01(1).

If the requirement of custody negates the effort to cover a defendant who has been lawfully detained but not arrested, this is arguably obscured by leaving the requirement of an arrest in the definition of custody. In fact, the instruction suggests escape from nonarrest detention is covered because only by reference to the definition of custody is the lack of coverage made clear.

The Committee drafted the instruction in the arguably inconsistent terms of the statutes. Some members, however, were uncomfortable with what they saw as a potentially misleading inconsistency in the instructions. Nevertheless, the statutory terminology left no other options open.

Definition of “Arrest.” Should arrest be defined in the jury instructions? If the statute does not apply to a person detained but not arrested, it is arguable that a definition of arrest that distinguishes arrest from detention is important to implementing the limited scope of the crime.

Two evidence sufficiency cases from the Texas Court of Criminal Appeals—Medford v. State, 13 S.W.3d 769 (Tex. Crim. App. 2000), and Warner, 257 S.W.3d 243—discuss the subject matter. Article 15.22 of the Texas Code of Criminal Procedure provides that a person is under arrest “when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.” Tex. Code Crim. Proc. art. 15.22. Medford made clear that “neither jurors nor reviewing courts can rely solely on Article 15.22’s definition of arrest as it could be applied in the context of the escape statute.” Medford, 13 S.W.3d at 772.

Warner characterized one of the issues before the court “was whether, in deciding whether an individual is guilty of the offense of escape, a jury is authorized to employ any meaning of the term ‘arrest’ that is acceptable in common parlance.” Warner, 257 S.W.3d at 243. The court unequivocally held that “it is not,” and added:

Warner, 257 S.W.3d at 247 (quoting Medford, 13 S.W.3d at 773). Neither case, however, addressed whether the jury instruction could or should include such a definition.

Some members of the Committee concluded that the discussion and rationale of Medford and Warner indicated that an instruction may and perhaps must include a definition of arrest setting out the substance of that in the cases’ discussions. They believed the instruction should include a definition along the following lines:

Other Committee members were unpersuaded that the evidence sufficiency decisions provided strong enough support to justify inclusion of a nonstatutory definition of arrest.

Given the split among the members, the Committee did not include a definition in its proposed instruction.

Felony Liability of Persons Detained but Not Arrested for a Felony. Escape becomes a third-degree felony under Tex. Penal Code § 38.06(c)(1) if the person “is under arrest for, charged with, or convicted of a felony.” If the crime covers persons lawfully detained for an offense, the crime does not become a felony because the detention is for a felony. The crime remains a class A misdemeanor.

Charged with an Offense. “[A] person is not charged with an offense until the filing of a complaint or the return of an indictment by a grand jury.” Bermen v. State, 798 S.W.2d 8, 10 (Tex. App.—Houston [1st Dist.] 1990), pet. dism’d, improvidently granted, per curiam sub nom. Hendricks v. State, 817 S.W.2d 86 (Tex. Crim. App. 1991).

In the absence of case authority that this or any other definition of “charged with . . . an offense” is properly included in the jury instruction, the Committee was unwilling to include any such definition.

Unlawfulness of the Custody. Under Tex. Penal Code § 38.08, the unlawfulness of the custody is no defense in a prosecution under section 38.06.

Generally, how should this be handled? The Committee included a statement of this in the relevant statutes unit of CPJC 38.10. Perhaps this should be given only if some evidence suggests the custody is unlawful.

If the state’s theory is that the defendant was detained (rather than arrested, charged, or convicted), the statute states that it applies “when the person is . . . lawfully detained for . . . an offense.” Tex. Penal Code § 38.06(a)(1) (emphasis added). In such a case, the unlawfulness of the detention is obviously in issue. It is difficult to see how the detention could be unlawful but the custody lawful. Perhaps the general instruction on unlawfulness should not be given if the state relies on proof of detention.

Secure Correctional Facility or Law Enforcement Facility. Tex. Penal Code § 38.06(c)(2) provides that the offense is a felony if the defendant “is confined or lawfully detained in a secure correctional facility or law enforcement facility.” “Secure correctional facility” is defined in section 1.07(45). The Penal Code has no definition of either “secure law enforcement facility” or “law enforcement facility.” In addition, section 38.06(c)(2) is not clear on whether “secure” applies only to correctional facility or also to law enforcement facility.

Given the lack of a reasonable alternative, the Committee’s instruction passes along the ambiguity by using the ambiguous statutory language.

Offense as Felony and Other Possible Matters of Law. Several of the elements, particularly when the state charges a felony violation, raise what might be regarded as matters of law. The indictment may, for example, allege the accused was arrested for possession of a controlled substance and that this offense was a felony. Is whether the offense generally, or on the facts of the case, a felony a matter for the jury? If so, how should the jury be instructed on this?

The same questions might be raised regarding whether a particular facility meets the requirements of section 38.06(c)(2) or (3).

The instruction at CPJC 38.10 contains a separate element for felony cases requiring the jury to address whether the state has proved the aggravating matter. If the state charges a third-degree felony under section 38.06(c)(1), for example, the state must prove that the offense for which the person was arrested, charged, or convicted was a felony.

Nature of Offense and Defense of Necessity. Unlike escape crimes in many jurisdictions, escape under the Texas Penal Code is not a continuing offense. It consists of leaving custody and is complete when that is done. As a result, a defendant is entitled to rely on the necessity defense without producing evidence that his remaining at large after leaving custody was justified on necessity-related grounds. Spakes v. State, 913 S.W.2d 597, 598 (Tex. Crim. App. 1996) (“We . . . conclude that a person accused of escape need not present evidence of an attempted surrender before a necessity instruction is required, if some evidence otherwise complying with § 9.22 has been presented.”). Federal criminal law holds otherwise. See United States v. Bailey, 444 U.S. 394 (1980).