concluding that escape is not a continuing offense but is complete at the time of the defendant’s “initial departure from custody” so that circumstances arising later cannot negate a necessity defense
How later courts described this case
- concluding that escape is not a continuing offense but is complete at the time of the defendant’s “initial departure from custody” so that circumstances arising later cannot negate a necessity defense
- explaining the con-, cept of factual impossibility and noting various examples such as attempting to kill with poison that was not capable of producing death
- reciting that if the “intended end is a legally proscribed harm, the failure to effect it because of the lack of a factual condition necessary to its occurrence . . . is no defense”
- concluding offense of escape is completed when defendant leaves custody and is not continuous during period when he is fugitive
Written by the judges who cited it.
The opinion
McCORMICK, Presiding Judge,
dissenting on State’s petitions for discretionary review.
I dissent. This Court has held in a different context that legally the crime of escape is not a “continuing offense.” See Fitzgerald v. State, 782 S.W.2d 876, 881 (Tex.Cr.App. 1990). In this case, however, application of this rule is dependent on a certain fact finding about when the escape was completed before it can be said it was “legally impossible for appellant to have intended to commit the underlying offense of felony escape.” Recognizing its duty to instruct the jury on the applicable law, the trial court properly instructed the jury it legally could not convict appellant if it found the offense of escape had been completed before appellant broke into the apartment. On this record, I would hold the trial court properly submitted the issue of whether the escape had been completed as one of fact for the jury to decide, and I would defer to the jury’s fact finding on this issue. Holding “as a matter of law” that the escape was completed by the time appellant broke into the apartment usurps the jury’s fact-finding role in this case.
In addition, much of the discussion in the majority opinion would be germane to this case had the State alleged appellant broke into the apartment and “committed or attempted to commit” the felony offense of escape. See V.T.CA.., Penal Code, Section 30.02(a)(3). But that is not how the State charged the offense in this case. The State alleged appellant broke into the apartment with the intent to commit felony escape. See Y.T.C.A., Penal Code, Section 30.02(a)(1). I would hold the evidence supports a finding that when appellant entered the apartment he did so with the intent to depart from custody without permission. It is irrelevant whether appellant legally or factually could have actually committed the offense of escape when he entered the apartment since the State did not allege appellant committed or attempted to commit the offense of escape. See Section 30.02(a)(1). The bottom line is that when the State charges burglary, as it did here, it should make no difference whether the intended felony could have been committed or not.
I respectfully dissent.