Swaim v. State

498 S.W.2d 188

• Court: Court of Criminal Appeals of Texas
• Decided: July 11, 1973
• Docket: 46238-46240
• Status: Published

Opinions

OPINION

DALLY, Commissioner.

These are appeals from final judgments forfeiting appearance bonds.

The appellants were sureties on three bonds for Wanda Harman. A judgment nisi was entered in the 104th District Court of Taylor County forfeiting each of the three bonds. A final judgment was entered against Wanda Harman as principal and Michael S. Parks and Jon Swaim as sureties. Only the sureties have appealed from the judgment.

One of the appellants’ points of error is that-the bonds are invalid because they do not designate a proper court where the principal is to appear.

The State on the other hand argues that “ . . . the bond[s are] very clear with regard to the court where the principal was to appear. The bond states, ‘Now, if the said principal shall make his personal appearance instanter before -, a Justice of the Peace in Precinct No. Taylor -of Tarrant County, Texas, at Taylor the Courtroom of said magistrate in Tarrant County, Texas and there remain from day to day and term to term of said Justice of the Peace Court until discharged by due course of law, then and there to answer said above described charge, and shall personally appear instanter before any Crimi-Taylor nal District Court of Tarrant County, Tex-Abilene, Taylor as, in the City of Pert Wort-⅛ Tarrant County, Texas, in whichever of said Courts this cause may hereafter be pending as well as before any Court to which said cause may be transferred at any time when, and place where, the presence of the Defendant herein may be required under the Code of Criminal Procedure of the State of Texas by any such Court, or Magistrate, and there remain from day to day and term to term of any such Courts in which or before whom said charge may be transferred or pending, for any and all subsequent proceedings had concerned with or relative to this charge, until discharged by due course of law; . . . (Emphasis supplied by the State in its brief.)

It is obvious the printed forms used for each of the bonds were specially printed for use in Tarrant County. The bonds were executed in Tarrant County and approved by the sheriff of that county, then transmitted to Taylor County where the charges were pending.

The State’s argument that the provision for the appearance of the principal in “any Criminal District Court in Taylor County” is a sufficient designation of the court is not sound. This court will take judicial knowledge that there is no Criminal District Court in Taylor County just as it took judicial knowledge that there was no Criminal District Court in Bell County in Mullins v. State, 168 Tex.Cr.R. 349, 327 S.W.2d 578 (1959), a similar bond forfeiture case.

There is also a material variance between the bond which recites that the principal “shall personally appear instanter be-Taylor fore any Criminal District Court of ¾½⅞¾⅜: County . . . ” and the judgment nisi which recites that the bond was “conditioned that the Defendant, as principal, should well and truly make her personal appearance, instanter, before the Hon. District Court of Taylor County.”

The judgments are reversed and the causes remanded.

Opinion approved by the Court.