OPINION

The conviction is for the offense of burglary with intent to commit theft; the punishment, twelve years.

It is shown by affidavit of the sheriff of Bexar County, Texas, that on February 4, 1970, Samuel C. Fonseca, the appellant in this cause, escaped from his custody, and has not voluntarily returned or been recaptured within ten days after his escape. At the time of his escape the appellant’s appeal was pending before this Court. The state moves to dismiss the appeal. Arts. 44.09 and 44.10, Vernon’s Ann.C.C.P.; Leopard v. State, Tex.Cr.App., 429 S.W.2d 150; McGee v. State, Tex.Cr.App., 436 S.W.2d 340.

The state’s motion is granted.

The appeal is dismissed.