Maxie D. Green, D/B/A a to Z Bail Bonds v. the State of Texas ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00013-CV
___________________________
MAXIE D. GREEN D/B/A A TO Z BAIL BONDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. 190,340-A
Before Sudderth, C.J.; Kerr and Walker, JJ.
Memorandum Opinion by Chief Justice Sudderth
Concurring Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Introduction
After Maria Delcarman Sosa-Esparza was indicted for a felony offense in
August 2017, she entered into a bail bond with Appellant Maxie D. Green d/b/a A to
Z Bail Bonds as surety, securing Sosa’s appearance in the trial court. Sosa was
ordered to appear for a pretrial conference on March 1, 2019, but she failed to appear.
The trial court entered a judgment nisi, which states that Sosa’s name had been called
“at the courtroom door.” Cf. Tex. Code. Crim. Proc. Ann. art. 22.02 (requiring call at
the “courthouse door”). Both Green and Sosa were cited to appear and show cause
why the forfeiture should not be made final. Green timely answered, but Sosa
defaulted and is not a party to this appeal.
The State moved for a traditional summary judgment on the bond forfeiture,
and Green responded by arguing that the State’s evidence raised issues of fact on the
essential elements of its case, namely whether Sosa’s name was called at the
courthouse door. Green also lodged objections to the State’s summary judgment
evidence. The trial court granted the State’s motion without ruling on Green’s
objections, and Green appealed, arguing in three points that the State’s own evidence
raised issues of fact as to (1) whether Green received proper notice of the pretrial
hearing; (2) whether Sosa’s name was called at the courthouse door; and (3) the
proper identification of the defendant. We sustain Green’s second point, reverse the
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trial court’s judgment, and remand the case for further proceedings.1 See Tex. R. App.
P. 43.2(d).
Standard of Review
In a summary judgment case, the issue on appeal is whether the movant
established that no genuine issue of material fact exists and that the movant is entitled
to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary
judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We take
as true all evidence favorable to the nonmovant, and we indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249
S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). The movant’s own summary judgment evidence can create an issue of
fact. Keever v. Hall & Northway Advertising, Inc., 727 S.W.2d 704, 706 (Tex. App.—
Dallas 1987, no pet.); see Luke v. Unifund CCR Partners, No. 2-06-444-CV, 2007 WL
2460327, at *4–5 (Tex. App.—Fort Worth Aug. 31, 2007, no pet.) (mem. op.).
In a traditional summary judgment, if the movant fails to establish its
entitlement to summary judgment, the burden of proof never shifts to the
nonmovant. Draughon v. Johnson, 361 S.W.3d 81, 87–88 (Tex. 2021).
Because our holding on Green’s second point is dispositive, we need not
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address points one and three. See Tex. R. App. P. 47.1
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Applicable Law
Though criminal actions, bond forfeiture cases are reviewed on appeal using
the same rules as civil suits. Tex. Code Crim. Proc. Ann. arts. 44.42, 44.44; Benson v.
State, 476 S.W.3d 136, 138 (Tex. App.—Austin 2015, pet. ref’d). Bond forfeiture
proceedings are entirely statutory, and courts strictly construe the statutes governing
them. Hernden v. State, 865 S.W.2d 521, 523 (Tex. App.—San Antonio 1993, no pet.).
The Code of Criminal Procedure outlines the statutory framework for bond
forfeiture proceedings:
Bail bonds and personal bonds are forfeited in the following manner: The
name of the defendant shall be called distinctly at the courthouse door, and if the
defendant does not appear within a reasonable time after such call is made, judgment
shall be entered that the State of Texas recover of the defendant the amount of
money in which he is bound, and of his sureties, if any, the amount of money in
which they are respectively bound, which judgment shall state that the same will be
made final, unless good cause be shown why the defendant did not appear.
Tex. Code. Crim. Proc. Ann. art. 22.02.
The essential elements of the State’s bond forfeiture claim are the bond and
judgment nisi. Alvarez v. State, 861 S.W.2d 878, 880–81 (Tex. Crim. App. 1992). A
judgment nisi is prima facie proof that the statutory elements have been satisfied.
Tocher v. State, 517 S.W.2d 299, 301 (Tex. Crim. App. 1975) (quoting Thompson v. State,
31 Tex. 166, 166 (1868) (“This court will presume that the judgment nisi was taken in
accordance with the statutory requirements, unless it affirmatively appears
otherwise.”)). When moving for summary judgment on a bond forfeiture, the State
must conclusively prove three facts: (1) a valid bond; (2) the failure of the defendant
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to appear at a criminal hearing at which his presence is required; and (3) the calling of
the defendant’s name distinctly at the courthouse door. Alvarez, 861 S.W.2d at 881,
888; see Tex. Code Crim. Proc. Ann. art. 22.02.
Application
Because the judgment nisi states that Sosa’s name was called at the courtroom
door, as opposed to the courthouse door, Green contends that the State failed to
establish that there exist no genuine issues of material fact concerning whether Sosa’s
name was called at the courthouse door as required by Article 22.02. See Tex. Code.
Crim. Proc. Ann. art. 22.02. We agree.
The State’s Evidence
To prove that Sosa’s name was called at the courthouse door, the State
proffered three pieces of summary judgment evidence: (1) a certified copy of the
judgment nisi stating that Sosa’s name “was distinctly called at the courtroom door”;
(2) a certified certification of call stating that Sosa’s name was called “three times
loudly and distinctly in compliance with Texas Code of Criminal Procedure Article
22.02”;2 and (3) two unanswered requests for admission—Request for Admission No.
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The certification of call is an unsworn, signed statement from the trial court’s
administrator, which states in full:
On March 1, 2019, pursuant to the ORDER of the Court, I called the name of
the defendant Maria Sosa, in this case three times loudly and distinctly in compliance
with Texas Code of Criminal Procedure Article 22.02. A reasonable time was given
after the calls were made for the defendant to appear, but the defendant did not
answer or appear and wholly made default.
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8 and Request for Admission No. 9—which the State argues were deemed admitted
by operation of law.3 Request for Admission No. 8 asked Green to admit or deny
that “Defendant–Principal’s name was distinctly called outside the Wichita County
courtroom door for a scheduled hearing on the hearing date.” Request for Admission
No. 9 requested that Green admit or deny that “Defendant–Principal was given
reasonable time and did not appear in Court for a scheduled hearing on the hearing
date.”
Green’s Objection Limits Evidentiary Scope
In his response to the State’s motion, Green objected to the certification of call
as conclusory. Specifically, Green objected to the statement that Sosa’s name was
called “distinctly in compliance with Texas Code of Criminal Procedure Article
22.02.” There is no indication in the record that the court ruled on this objection.
The State’s motion and response on appeal are predicated largely on the theory
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that Green, by operation of law, admitted each element of the State’s case by failing to
respond to the State’s propounded requests for admission. We will consider the
admissions in our analysis because Green did not address them with the trial court or
on appeal and, thus, preserved no valid complaint relative to them. Tex. R. Civ. P.
166a(c) (“[In summary judgment proceedings], [i]ssues not expressly presented to the
trial court by written motion, answer or other response shall not be considered on
appeal as grounds for reversal.”); see Unifund CCR Partners v. Weaver, 262 S.W.3d 796,
797–98 (Tex. 2008) (holding that a party waives right to challenge deemed admissions
if not properly raised with trial court). But see Medina v. Zuniga, 593 S.W.3d 238, 244–
46 (Tex. 2019) (“[R]equests for admissions are no method for trying the merits.”).
The deemed admissions to requests eight and nine, so the State argues, admit all
elements required to establish the statutory requisites of Article 22.02.
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Typically, to preserve an objection to summary judgment evidence for appellate
review, the objecting party must have obtained a ruling from the trial court. Tex. R.
App. P. 33.1(a)(2)(A); see Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex. 2002). However,
objecting to a statement in summary judgment evidence as conclusory asserts a defect
of substance rather than form and can be raised for the first time on appeal. Albright
v. Good Samaritan Soc’y–Denton Vill., No. 02-16-00090-CV, 2017 WL 1428724, at *2
(Tex. App.—Fort Worth April 20, 2017, no pet.) (mem. op.); see also Seim v. Allstate
Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018). A statement that is nothing more than a
legal conclusion is incompetent summary judgment evidence because it does not
provide the underlying facts to support its conclusion. Brown v. Mesa Distribs. Inc., 414
S.W.3d 279, 287 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see Anderson v. Snider,
808 S.W.2d 54, 55 (Tex. 1991) (holding statements, “I acted properly . . . and that I
have not violated the [DTPA] . . . [and] did not breach my contract,” were legally
conclusive); Gail v. Berry, 343 S.W.3d 520, 523 (Tex. App.—Eastland 2011, pet.
denied) (holding statement, “I do not believe that this is a case of mutual mistake,”
was legally conclusive); Doherty v. Old Place, Inc., 316 S.W.3d 840, 845 (Tex. App.—
Houston [14th Dist.] 2010, no pet.) (holding statement, “I claim fee simple title,” was
legally conclusive); see also In re S.B., No. 02-19-00048-CV, 2019 WL 3334615, at *8
(Tex. App.—Fort Worth July 25, 2019, pet. denied) (mem. op.) (explaining that a
conclusory statement is one that does not provide the underlying facts to support the
conclusion and that without revealing the conclusion’s basis, the statement constitutes
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no evidence at all); Long v. Faris, No. 02-17-00236-CV, 2018 WL 1192252, at *6 (Tex.
App.—Fort Worth Mar. 8, 2018, no pet.) (mem. op.) (“Conclusory evidence is not
competent summary judgment proof . . . .”).
While the State’s certification of call provides some factual basis to support how
Sosa’s name was called (“three times loudly and distinctly”), it fails to provide any
factual basis for where Sosa’s name was called. Simply stating that the call was made in
compliance with Article 22.02 is nothing more than legally conclusive on this fact. See
Brown, 414 S.W.3d at 287. Accordingly, this statement is incompetent evidence to
support summary judgment on the fact issue of whether Sosa’s name was called at the
courthouse door. See Anderson, 808 S.W.2d at 55.
The State Did Not Meet Its Initial Burden
Thus, we must determine—based only on the judgment nisi and deemed
admissions—whether the State established conclusively that Sosa’s name was called at
the courthouse door. We conclude that it did not.
Both the judgment nisi and the deemed admissions provide only that Sosa’s
name was called at the courtroom door.4 Of course, the fact that Sosa’s name was
called at the courtroom door does not, in itself, preclude that her name was also called
at the courthouse door. However, for purposes of summary judgment, we must take
4
We do not address here whether the judgment nisi is defective, only whether
its statements serve to carry the State’s initial summary judgment burden on this
element. See Tex. Code Crim. Proc. Ann. art. 22.12 (stating that court may not set
aside judgment nisi for form defect).
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as true all evidence favorable to Green and indulge every reasonable inference and
resolve any doubts in his favor. See 20801, Inc., 249 S.W.3d at 399.
The State argues that it carried its burden on this element because calling a
defendant’s name at the courtroom door presumes substantial compliance with
Article 22.02. While it is true that courts have repeatedly held that calling a
defendant’s name at the courtroom door substantially complies with the directive to
call the name at the courthouse door, these cases were almost exclusively decided at
trial on the merits rather than at the summary judgment stage.5 E.g., Deem v. State, 342
S.W.2d 758, 758–59 (Tex. Crim. App. 1961); Caldwell v. State, 126 S.W.2d 654, 654
(Tex. Crim. App. 1939); Aspilla v. State, 952 S.W.2d 610, 611–12 (Tex. App.—
Houston [14th Dist] 1997, no pet.); see also Alvarez, 861 S.W.2d at 884–86 (Overstreet,
J., concurring and dissenting on orig. submission) (collecting cases).
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It is also notable that we find no cases deciding the very narrow question
raised in this case: Does the State, as summary judgment movant in a bond forfeiture
case, bear its initial burden as to whether the defendant’s name was called at the
courthouse door where the judgment nisi on its face recites only that the defendant’s
name was called at the courtroom door and the State provides no competent evidence
showing otherwise? See Todd v. State, No. 14-10-00031-CR, 2011 WL 704337, at *2
(Tex. App.—Houston [14th Dist.] Mar. 1, 2011, pet. ref’d) (mem. op., not designated
for publication) (affirming summary judgment where judgment nisi explicitly recited
name called at the courthouse door); Guiles v. State, No. 2-09-146-CV, 2010 WL
851421, at *2 (Tex. App.—Fort Worth Mar. 11, 2010, no pet.) (mem. op.) (affirming
summary judgment where nonmovant’s affidavit stated that to his knowledge, name
was not called, held conclusory and, thus, failed to raise an issue of fact that
defendant’s name was called at courthouse door).
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Because the State’s evidence wholly fails to address whether Sosa’s name was
called at the courthouse door, and because we are precluded from inferring facts in
the State’s favor, the summary judgment evidence creates doubt about where Sosa’s
name was called. We must resolve these doubts in Green’s favor. See 20801, Inc., 249
S.W.3d at 399. In doing so, we conclude it is reasonable to infer that the call occurred
only at the courtroom door, which might not be in the same location as the courthouse
door, as the record is silent on that point. Consequently, the State has failed to satisfy
its initial burden of demonstrating that no issue of material fact exists on this essential
element and, therefore, is not entitled to summary judgment as a matter of law.
To the extent that one of our sister courts has held to the contrary, we
disagree with its analysis. See Quintero v. State, No. 14-96-00587-CR, 1998 WL 104960,
at *2 (Tex. App.—Houston [14th Dist.] Mar. 12, 1998, pet. dism’d w.o.j.) (not
designated for publication). In Quintero, our sister court stated, in a summary
judgment case, that “it is not required that the defendant be called from the
‘courthouse door.’ Rather, it has been repeatedly held that calling for a defendant
from the hallway outside the courtroom where the proceedings are to take place
constitutes substantial compliance with article 22.02.” Id. The court affirmed
summary judgment for the State, holding that a bailiff’s affidavit proffered by the
nonmovant surety stating that the defendant’s name was called at the courtroom door
on the second floor of the courthouse “satisfied” Article 22.02. Id.
10Contrary to Quintero, we hold that the distinction between proof at trial and
proof at the summary judgment stage is important because the supreme court has
instructed us that the presumptions and burdens of proof at trial are “immaterial to
the burden that a movant for summary judgment must bear.” Mo.-Kan.-Tex. R.R. v.
City of Dallas, 623 S.W.2d 296, 298 (Tex. 1981). “[A] summary judgment movant may
not use a presumption to shift to the non[]movant the burden of raising a fact issue of
rebuttal.” Chavez v. Kan. City S. Ry., 520 S.W.3d 898, 900 (Tex. 2017).
In essence, the State contends that it is entitled to the presumption of
substantial compliance regardless of any genuine issues of material fact that arise on
the face of its own evidence. To afford the State this presumption—particularly when
we are to strictly construe Article 22.02, Hernden, 865 S.W.2d at 523—would
inappropriately displace its heightened summary judgment burden with the lesser
burden of proof it would bear at trial. Chavez, 520 S.W.3d at 900; see Torres v.
Caterpillar, Inc., 928 S.W.2d 233, 239 (Tex. App.—San Antonio 1996, pet. denied)
(instructing that summary judgment is a “harsh remedy requiring strict construction”
because it is an exception to conventional trial proceedings decided on evidence
admitted in open court). Therefore, we sustain Green’s second and dispositive point.
Conclusion
Having resolved the case in Green’s favor on his second point, we reverse the
trial court’s judgment and remand the case for further proceedings in the trial court.
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/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: December 2, 2021
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