Smith v. State , 567 S.W.2d 10 ( 1978 )

OPINION

TOM G. DAVIS, Judge.

This is an appeal from a final judgment forfeiting an appearance bond.

The appellant was surety on a bond for Phillip Sanchez in the amount of $5,000. A judgment nisi forfeiting the bond was entered in the 167th District Court of Travis County. A final judgment was entered against Phillip Sanchez as principal and Frank Smith as surety.

Appellant contends that'there is a fatal variance between the bond (State’s Exhibit 3A) and the judgment nisi (State’s Exhibit 4A). State’s Exhibit 3A is an appearance bond on which Phillip Sanchez is principal and Frank Smith is surety in the amount of $5,000. The bond is dated October 18,1976. The judgment nisi states that the principal and surety entered into the bond on October 18, 1977. The judgment nisi further reflects that the bond was forfeited on January 27, 1977, obviously a date prior to October 18, 1977.

The record reflects that the appellant made a timely objection in the trial court that the date of the bond as “October 18, 1977,” in the judgment nisi was an impossible date. This objection was overruled and the appearance bond and the judgment nisi were admitted into evidence. Although, as the State points out, Article 22.12, V.A.C. C.P., provides that the judgment nisi may be amended under the direction of the court, no such amendment was made in this case. In LeMier v. State, 489 S.W.2d 898, this Court held that an amended judgment nisi which corrected a variance of this type would support a final judgment of forfeiture. Here, however, no such correction was made, although the defect was pointed out in the trial court in a timely manner by the appellant. The final judgment of forfeiture carries forward the incorrect date contained in the judgment nisi.

Thus, while the bond shows to have been executed on October 18,1976, the judgment nisi and the final judgment recite that the bond was dated October 18, 1977. It follows that the proof is at variance with and will not support the judgment nisi and final judgment.

The judgment is reversed and the cause remanded.