Texas Stamp


PD-0867-18 11/21/2018

“In an issue of first impression, did the court of appeals correctly determine that the evidence is legally sufficient to support a conviction for ‘failure to appear & bail jumping’ when a trial court revokes a defendant’s bail in open court, remands the defendant to jail, and the defendant fails to report to jail as ordered?”

Timmins was out on bail when the State moved to revoke his bond because of drug use.  The trial court revoked but permitted Timmins to escort his mother home and report to jail that afternoon. Timmins never reported. He was arrested, charged with failing to appear, see Tex. Penal Code § 38.10, and convicted.

Timmins challenged the sufficiency of the evidence by challenging the statute’s applicability to his conduct. The statute says, “A person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.” First, he argued that he never failed to “appear” because that term contemplates an appearance for a court proceeding. Second, he argued that he was never “released” because he remained under constraint pursuant to the trial court’s order. He argued that the proof at trial supports the offense of escape, see Tex. Penal Code § 38.06, but not failure to appear.

In the absence of statutory definitions for “release,” the court of appeals considered its plain meaning.  It held that a jury rationally could have found Timmins was released when he “was freed from the prohibition against leaving the courtroom and freed from the limitation of being physically present in the courtroom.”  The court construed “appear” in a manner consistent with its apparent purpose, which it concluded was “to ensure the defendant will be physically present at trial,” and held that the Legislature intended “appear” to be construed with reference to the terms of the defendant’s release. In this case, Timmins was released with the order to appear at jail. The evidence was thus sufficient.

Timmins reurges his construction of the statute in his petition.

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