Guy Williams, D/B/A Freedom Bail Bonds v. State

Opinion

                              NUMBER 13-03-747-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

GUY WILLIAMS, D/B/A

FREEDOM BAIL BONDS,                                                              Appellant,

                                                             v.                               

THE STATE OF TEXAS,                                                                  Appellee.

          On appeal from the 94th District Court of Nueces County, Texas.

                               MEMORANDUM OPINION

         Before Chief Justice Valdez and Justices Hinojosa and Yañez

                            Memorandum Opinion by Justice Yañez

Appellant and surety, Guy Williams d/b/a Freedom Bail Bonds, appeals a trial court=s judgment that ordered forfeiture of a bail bond.  In three issues, appellant contends (1) his liability as a surety was discharged when the underlying criminal case against the principal, Espiridion Guillen, was dismissed, (2) the trial court erroneously admitted a bail bond into evidence as a public record, and (3) the court improperly rendered a final judgment that did not dispose of all parties.  We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.^[1] 

Finality of Judgment

Regarding appellant=s third issue,^[2] he claims the principal was a necessary party to the forfeiture proceeding and that the State failed to provide him with notice.  As a result, he claims the trial court=s judgment was not final because it did not dispose of all necessary parties to the proceeding. 

Our initial inquiry is always whether we have jurisdiction over an appeal.^[3]  Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment.^[4]  Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order.^[5]  If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal.^[6]  A judgment is not final unless it disposes of all pending parties and claims in the record.^[7]  In a bond forfeiture proceeding, a trial court=s final judgment must be rendered against both the principal and the surety.^[8]

In this case, the record does not reflect that there were any pending claims unaddressed by the trial court.  The record shows that the only parties to the proceeding were the State, appellant, and the principal.  The trial court=s final judgment recites AIt is therefore ORDERED that [the State] be granted a JUDGMENT OF FORFEITURE and recover against Defendants Espiridion Guillen and Freedom Bail BondsBGuy Williams,  jointly and severally . . . .@  Because the record does not reveal any claims or parties not addressed by the court=s final judgment, we conclude that it is final for purposes of appeal.^[9]

We now turn to appellant=s argument that the State failed to provide the principal with notice.

       Statutory Judgment Nisi Notice Requirements

In a bond forfeiture proceeding, article 22.05 of the code of criminal procedure requires that notice be mailed to the principal of the judgment nisi if the principal furnished an address on the bond.^[10]  The notice must be mailed to the principal's address as shown on the bond.^[11]  A rebuttable presumption attaches that the mailing required by article 22.05 occurred.^[12]         

In this case, as required by article 22.05, the judgment nisi ordered that "notice to the Defendant, as principal, be deposited in the United States Mail directed to the said Defendant at the address shown on the bond. . . ."^[13]  The record shows that the principal furnished his address on the bond, and the record contains the State=s sworn assertion that notice was sent to the principal=s address via certified United States Mail.  A copy of a certified mail receipt also shows that certified mail was sent to the principal=s address.  Based on this evidence, we conclude that the principal received appropriate notice as required by article 22.05.^[14]  Because the principal received appropriate notice, we overrule appellant=s third issue.^[15]

In his first issue, appellant contends his liability as surety was discharged when the case against the principal was dismissed. 

The primary purpose of an appearance bond is to secure the presence of the defendant in court for trial on the offense charged.^[16]  When a defendant fails to appear in court as required, the court shall forfeit the bond and issue a judicial declaration of forfeiture.^[17]  The judicial declaration of forfeiture is the judgment nisi.^[18]  Once the trial court enters the judgment nisi, a citation shall issue notifying the sureties of the defendant, if any, that the bond has been forfeited and requiring them to appear and show cause why the judgment of forfeiture should not be made final.^[19] 

After a judicial declaration of forfeiture is entered, the trial court may exonerate the defendant and his or her sureties from liability on the forfeiture only as expressly provided under chapter 22.^[20]  Article 22.13 of the code of criminal procedure governs situations where forfeiture occurs before the final disposition of the underlying criminal case.^[21]  The sole grounds for exonerating a defendant and his sureties upon forfeiture of a bond are those provided in article 22.13.^[22]

Here, the record reflects that the principal failed to appear for arraignment in the underlying criminal case.  Because the principal failed to appear, the trial court forfeited his bond and issued a judgment nisi.  After the judgment nisi was issued,  the case against the principal was dismissed. 

In support of his contention regarding discharge of liability, appellant specifically relies on article 17.09 of the code of criminal procedure, which states that a surety is liable for the defendant's personal appearance before the court to answer the charge against him as well as before any and all subsequent proceedings had relative to the charge.^[23]  However, the record reflects that the principal=s failure to appear in the underlying criminal case occurred before the case was dismissed.  Because the forfeiture occurred before final disposition of the underlying criminal case, we conclude that appellant=s sole grounds for exoneration were limited to those provided in article 22.13.^[24]  We also note that article 22.13 does not provide for discharge of a surety=s liability on the ground asserted by appellant in this issue.^[25]  Because appellant has failed to show that he was entitled to a discharge of liability, we overrule appellant=s first issue.^[26]

By his second issue,^[27] appellant asserts the bail bond is inadmissible under article 17.08^[28] of the code of criminal procedure and the rules of evidence regarding authentication and hearsay.^[29]  Appellant also argues the bail bond is inadmissible because no foundation was laid to show that the bond was a public record. Based on these contentions, appellant claims the trial court erred in admitting the bail bond into evidence.

The bail bond in question was filed with the Nueces County District Clerk.  In the bond=s heading, it bears the words "The State of Texas."  The document introduced into evidence was a certified copy of the original bond that was filed with the district clerk.

Texas Rule of Evidence 1005, which pertains to public records, provides that:

The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original.^[30]

Extrinsic evidence of authenticity is not a condition precedent to the admissibility of a public record.^[31]  Certified copies of public records are self‑authenticating.^[32]  Therefore, pursuant to rule 1005, a copy of a public record, in this case, the bail bond, "will be admissible in place of an original where the copy is certified in accordance with Rule 902."^[33]

During trial on the judgment nisi, the State, over appellant=s objections, offered a certified copy of the bail bond as evidence.  After examining the certified copy of the bail bond, the court overruled the objections and admitted it into evidence.  Because the certified copy of the bail bond is a self‑authenticated public record, no further authentication was required.^[34]  Additionally, appellant's hearsay objection fails because a public record falls under the hearsay exception.^[35]  We thus conclude that the trial court did not err in admitting the bail bond into evidence as a public record.  We overrule appellant's second issue.

Because we have overruled all of appellant=s issues, the trial court=s judgment is affirmed.                                             

_______________________

LINDA REYNA YAÑEZ,

Justice

Memorandum Opinion delivered and

filed this the _ day of August, 2005.

---

^[1]  See Tex. R. App. P. 47.4. 

^[2]   Because appellant=s third issue presents a challenge to this Court=s jurisdiction, we address it first.

^[3]   See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

^[4]   See Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). 

^[5]   See Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam).

^[6]   See Garcia v. Comm=rs Court of Cameron County, 101 S.W.3d 778, 784 (Tex. App.BCorpus Christi 2003, no pet.).

^[7]   See Lehmann, 39 S.W.3d at 205-06. 

^[8]   See Tex. Code Crim. Proc. Ann. art. 22.14 (Vernon 1989).  

^[9]  See id.; Lehmann, 39 S.W.3d at 205-06. 

^[10]  See Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989); Guy Williams d/b/a Freedom Bail Bonds v. State, 114 S.W.3d 703, 709 (Tex. App.BCorpus Christi 2003, no pet.).

^[11]  See Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989).

^[12]  See Escobar v. State, 587 S.W.2d 714, 717 (Tex. Crim. App. [Panel Op.] 1979).

^[13]  See Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989).

^[14]  See id.; Escobar, 587 S.W.2d at 717.

^[15]  See Tex. Code Crim. Proc. Ann. art. 22.05 (Vernon 1989); Williams, 114 S.W.3d at 709.

^[16]  See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980).

^[17]  See Tex. Code Crim. Proc. Ann. art. 22.01 (Vernon 1989).

^[18]  See State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. App. 1990). 

^[19]  See Tex. Code Crim. Proc. Ann. art. 22.03 (Vernon 1989).

^[20]  See Allegheny Cas. Co. v. State, 52 S.W.3d 894, 900 (Tex. App.BEl Paso 2001, no pet.).

^[21]  See Telles Bail Bonds v. State, 911 S.W.2d 820, 822 (Tex. App.BEl Paso 1995, pet. ref=d).

^[22]  See Lyles v. State, 587 S.W.2d 717, 717-18 (Tex. Crim. App. 1979), cert. denied, 445 U.S. 951(1980) (stating that the only grounds for exonerating liability under a bond forfeiture are those provided in article 22.13 of the code of criminal procedure).

^[23]  See Tex. Code Crim. Proc. Ann. art. 17.09 (Vernon 2005).

^[24]  See Tex. Code Crim. Proc. Ann. art.  22.13 (Vernon Supp. 2004-05); Lyles, 587 S.W.2d at 717-18.

^[25]  See Tex. Code Crim. Proc. Ann. art.  22.13 (Vernon Supp. 2004-05).

^[26]  See id.; Lyles, 587 S.W.2d at 717-18.

^[27]   As part of his second issue, appellant also claims the bond is insufficient.  However, he has failed to provide an argument in support of this contention.  We therefore decline to construct appellant=s argument for him.  See Tex. R. App. P. 38.1(h).

^[28]  See Tex. Code Crim. Proc. Ann. art. 17.08 (Vernon 2005).

^[29]  See Tex. R. Evid. 803, 902. 

^[30]  See Tex. R. Evid. 1005; Hutchins v. State, 650 S.W.2d 412, 414 (Tex. Crim. App. 1983) (holding that a bail bond was properly admitted as public record).

^[31]  See Tex. R. Evid. 902; Int'l Fid. Ins. Co. v. State, 65 S.W.3d 724, 727 (Tex. App.BEl Paso 2001, no pet.).

^[32]  See Int'l Fid., 65 S.W.3d at 727 (citing Tex. R. Evid. 902(4) (certified copy of bail bondsman's bond filed in principal's court file was self‑authenticating under rule 902(4))).

^[33]  See id.  (citing Reed v. State, 811 S.W.2d 582, 585 n.11 (Tex. Crim. App. 1991) (op. on State's mot. for reh=g)).

^[34]  See Tex. R. Evid. 902, 1005; Hutchins, 650 S.W.2d at 414; Int'l Fid., 65 S.W.3d at 727.

^[35]  See Tex. R. Evid. 803(8).