Warren Alkek, Individually and D/B/A a & a Bail Bonds (Aaron Edmond A/K/A Demario Kennedy) v. State

• Court: Court of Appeals of Texas
• Decided: June 29, 2006
• Docket: 13-05-00358-CV
• Status: Published

Opinion

                             NUMBER 13-05-00358-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

WARREN ALKEK, INDIVIDUALLY

AND  D/B/A  A&A BAIL BONDS,                                                     Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 24th District Court of Jackson County, Texas.

                       MEMORANDUM OPINION

               Before Justices Hinojosa, Rodriguez, and Garza

                         Memorandum Opinion by Justice Hinojosa

Appellant, Warren Alkek, individually and d/b/a A&A Bail Bonds, appeals from a trial court judgment forfeiting a bail bond.  In one issue, appellant contends the trial court abused its discretion in refusing to grant a sufficient remittitur of the forfeiture.  We affirm.

A.  Applicable Law

Under article 22.17 of the Texas Code of Criminal Procedure, after a final judgment is entered in a bond forfeiture proceeding, the surety on the bond may file with the court a special bill of review requesting, on equitable grounds, that the final judgment be reformed and that all or part of the bond amount be remitted to the surety.  Tex. Code Crim. Proc. Ann. art. 22.17(a) (Vernon 1989).  Under the statute, the decision to grant or deny the bill, in whole or in part, is entirely within the discretion of the trial court.  Id.; see also Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993) (en banc); Makeig v. State, 830 S.W.2d 956 (Tex. Crim. App. 1992) (adopting the decision and reasoning of Makeig v. State, 802 S.W.2d 59 (Tex. App.BAmarillo 1990)).  However, article 22.17 provides no guidelines for the exercise of the trial court=s discretion.  Lyles, 850 S.W.2d at 502 (citing Makeig, 802 S.W.2d at 62).

AIn determining whether the trial court abused its discretion, we must determine if the judge acted without reference to any guiding rules and principles, or, in other words, whether the court acted arbitrarily or unreasonably.@  Makeig, 802 S.W.2d at 62; Lyles, 850 S.W.2d at 502.  An abuse of discretion may exist on the part of the trial court Awhen there is a showing of sufficient cause for the accused=s failure to comply.@  Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62.  Sufficient cause usually requires Aa showing that the party did not break his recognizance intentionally, with the design of evading justice, or without a sufficient cause or reasonable excuse, such as unavoidable accident or inevitable necessity preventing his appearance.@  Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62-63.  AMere subsequent appearance by the accused is not sufficient cause for complete remission of the forfeiture.@  Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62.

In addition to considering the cause of the principal=s failure to comply, an appellate could should take into account (1) any extreme hardship resulting to the surety, balanced by whether compensation was received by the surety for taking the risk, (2) whether the surety incurred any costs in attempting to locate the principal, and (3) whether the principal was apprehended through the efforts of the surety.  Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62-63.  While the purpose of the law is not to act as a revenue device, see Gramercy Ins. Co. v. State, 834 S.W.2d 379, 381-82 (Tex. App.BSan Antonio 1991, pet. ref=d), nor to punish the surety for a principal=s noncompliance, the law does contemplate that noncompliance will result in forfeiture of the bond amount.  Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 63.

                                                               B.  Discussion

Appellant was the surety on a $40,000 bail bond for principal Aaron Edmond, a/k/a Demario Kennedy, who was charged with possession of marihuana.  Edmond failed to appear in court on May 9, 2002, and the trial court issued a Judgment Nisi on May 28, 2002.  A final default judgment for forfeiture of the full amount of the bond was entered on September 6, 2002.  On September 3, 2004, appellant applied for a Special Bill of Review under article 22.17.  The trial court held a hearing on December 20, 2004, and on March 3, 2005, issued an order of remittitur in the amount of $22,857, or approximately fifty-seven percent of the original bond, less court costs and interest.^[1]   

At the hearing on the special bill of review, Melissa Amador, an agent of A&A, testified that A&A charged a $4,000 fee to post Edmond=s bond.  Edmond paid $2,000 at the time the bond was made, but did not pay the remaining $2,000.  Amador testified that prior to May 9, 2002, she began to suspect that Edmond would not show up for his scheduled court date.  Edmond did not pay the balance of his bond fee, and he did not report to A&A every week as required by the bond agreement.  As a result, A&A executed an AAffidavit of Surrender@ on Edmond on April 29, 2002.

Amador testified that after Edmond failed to appear for his scheduled court date on May 9, she contacted Edmond=s father in Illinois, and asked him to please have Edmond call A&A.  Approximately one month after his failure to appear, Edmond called A&A and was informed of his new court date.  The record, however, does not indicate that Edmond ever voluntarily returned to Texas.  The record shows appellant paid bounty hunter Phillip March $6,000 to locate and arrest Edmond in Madison County, Illinois.

Although appellant incurred additional expenses in the re-apprehension of Edmond, we note that the remittitur granted by the trial court is more than three times the amount expended.  In addition, Amador=s testimony revealed that A&A was aware at the time they  executed the bond that Edmond=s primary home was in Illinois, and that he had previously been on probation in Harris County, Texas.^[2]  After reviewing the entire record, we cannot say that the trial court abused its discretion.  Appellant=s sole issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 29th day of June, 2006.

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^[1] The trial court=s final order required appellant to pay interest in the amount of ten percent from the date of forfeiture, May 28, 2002, through August 2003; five percent from September 1, 2003 to February 1, 2005; and five percent from February 2, 2005 until the date of payment.  See Tex. Code Crim. Proc. Ann. art. 22.17(a) (Vernon 1989). 

^[2] Amador testified that Edmond told her he had been on probation in Harris County, but it had been completed.  However, the record reveals that at the time the bond was executed, Edmond was still on probation in Harris County, and his probation was revoked on October 31, 2002.