Jason Martinez and Guy Williams, D/B/A Freedom Bail Bonds v. State ( 2002 )

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTIBEDINBURG

                              CAUSE NUMBER 13-01-535-CV

JAMES E. VANNOY AND

GUY WILLIAMS D/B/A

FREEDOM BAIL BONDS,                                              Appellants,

                                                   v.

THE STATE OF TEXAS,                                               Appellee.

                              CAUSE NUMBER 13-01-536-CV

ARMANDO SEVILLA AND

GUY WILLIAMS D/B/A

FREEDOM BAIL BONDS,                                              Appellants,

                                                   v.

THE STATE OF TEXAS,                                               Appellee.

                              CAUSE NUMBER 13-01-537-CV

JASON MARTINEZ AND

GUY WILLIAMS D/B/A

FREEDOM BAIL BONDS,                                              Appellants,

                                                   v.

THE STATE OF TEXAS,                                               Appellee.

                              CAUSE NUMBER 13-01-538-CV

JACK DEMPSEY HALE AND

GUY WILLIAMS D/B/A

FREEDOM BAIL BONDS,                                              Appellants,

                                                   v.

THE STATE OF TEXAS,                                               Appellee.

                              CAUSE NUMBER 13-01-563-CV

JASON MARTINEZ AND

GUY WILLIAMS D/B/A

FREEDOM BAIL BONDS,                                              Appellants,

                                                   v.

THE STATE OF TEXAS,                                               Appellee.

                   On appeal from the County Court at Law No. 3

                                  of Nueces County, Texas.

                                   O P I N I O N

          Before Chief Justice Valdez and Justices Yañez and Castillo

                                   Opinion by Justice Yañez

These are appeals from a final judgment forfeiting a bail bond after entry of a judgment nisi.  In each case, by a single point of error, appellant, Guy Williams d/b/a Freedom Bail Bonds, complains the trial court erred in rendering the final judgment because the bail bond was not admitted into evidence.  This issue was recently raised and decided in Guy Williams d/b/a Freedom Bail Bonds v. State, No. 13-01-00822-CV, 2002 Tex. App. LEXIS 5849, at *6-7 (Corpus Christi Aug. 8, 2002, no pet. h.) (designated for publication) .  We follow the decision in that case, and accordingly reverse and render.

Because the facts in all of these appeals are similar, we address them together.  After the appellant=s bailees were originally released from jail on bond, they failed to appear at trial and the court entered judgment nisi on each. The judgment nisi recites in each case that appellant is the surety on the bond.  Citation was issued and served on appellant as surety on the bail bond.  In accordance with Texas Rule of Civil Procedure 93, appellant filed verified answers specifically denying that he or the bailees had signed the bond.  On June 20, 2001, both the State and appellant appeared for these bond forfeiture trials. In each case, appellant objected to the court taking judicial notice of the bond.

Appellant contends the State failed to meet its burden of proof at trial because it did not introduce the bail bond into evidence. We agree.

In bail bond forfeiture trials, the State has the burden of proof.  See Deckard v. State, 615 S.W.2d 717, 718 (Tex. Crim. App. [Panel Op.] 1981); Deckard v. State, 605 S.W.2d 918, 921 (Tex. Crim. App. [Panel Op.] 1980). The bond and the judgment nisi are the two essential elements of the State=s cause of action.^[1]  Tocher v. State, 517 S.W.2d 299, 301 (Tex. Crim. App. 1975).  Traditionally, in a bail bond forfeiture trial, it has been necessary for the State to present and offer the bond and the judgment nisi into evidence.  Hester v. State, 15 Tex. Ct. App. 418, 419-20 (1884), overruled in part by Hokr v. State, 545 S.W.2d 463 (Tex. Crim. App. 1997).  Now, it is no longer necessary for the State to introduce the judgment nisi into evidence.  In Hokr, the Court of Criminal Appeals held that a trial court may take judicial notice of the judgment nisi.  Hokr, 545 S.W.2d at 466.  However, the Hokr court did not address whether a trial court may take judicial notice of the bail bond because the bond in that case had been admitted into evidence.  See id.  We have found no authority allowing a trial court to take judicial notice of a bond in a bail bond forfeiture proceeding.  Consequently, we conclude the State must offer into evidence the original bail bond in order to be entitled to a final judgment.  See Hester, 15 Tex. Ct. App. at 420.

In the present cases, appellant placed the authenticity of the bond in dispute by filing a general denial, by specifically denying the validity of the bond, and by objecting to the trial court taking judicial notice of the bond.  Because appellant put the bail bond at issue, we hold the State was required to present the bond at trial and offer it into evidence.

Further, Texas Rule of Evidence 201 provides that a judicially noticed fact must be one not subject to reasonable dispute and capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.  Tex. R. Evid. 201(b).  Because appellant denied having signed the bond, we conclude it was subject to reasonable dispute.  Therefore, judicial notice of the bond was improper.

Because the State failed to introduce the bail bond into evidence, we hold it failed to meet its burden of proof.  Appellant=s sole point of error in each case is sustained.

The trial court=s final judgments in these cases are reversed and judgment is rendered in each case that the State take nothing against appellant.

LINDA REYNA YAÑEZ

Justice

Do not publish.  Tex. R. App. P. 47.3.

Opinion delivered and filed this the

29th day of August, 2002.

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¹"A bond forfeiture is a criminal action, but after the entry of the judgment nisi all the proceedings, unless otherwise provided, are governed by the same rules as govern in civil cases; that is, by the applicable Rules of Civil Procedure.@  Tinker v. State, 561 S.W.2d 200, 201 (Tex. Crim. App. 1978) (quoting Blue v. State, 341 S.W.2d 917 (1960)); Fisher v. State, 832 S.W.2d 641, 643 (Tex. App.BCorpus Christi 1992, no pet.).