George v. State , 1979 Tex. Crim. App. LEXIS 1552 ( 1979 )

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

This is an appeal from a final judgment forfeiting a bail bond. On original submission we held the judgment must be reversed because neither the evidence nor the judgment nisi supports the final judgment.

In the State’s motion for rehearing it is urged that Article 44.24(b), V.A.C.C.P. authorizes this Court to reform and correct the judgment of the trial court, and that the judgment in the instant case should be affirmed under the authority of that statute. We disagree for two reasons.

The first reason for rejecting the State’s contention is that Article 44.24(b) is not applicable to appeals of bond forfeitures. Article 44.44, V.A.C.C.P., provides that in cases of bond forfeitures, “the proceeding shall be regulated by the same rules that govern civil actions where an appeal is taken or a writ of error sued out.” Salazar v. State, Tex.Cr.App., 486 S.W.2d 323.

Secondly, under the applicable Rule of Civil Procedure, this judgment must be reversed. Rule 434, T.R.C.P., provides:

“When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.” (Emphasis added.)

In the present case the cause must be remanded because it is necessary that some matter of fact be ascertained, without a record of which we may not correct the judgment. The final judgment of forfeiture, entered in the 158th Judicial District Court, recites that “no sufficient cause is shown why the defendant Steven Allan Parrish did not appear in this court on the 15th day of May, 1978 . . . ” (Emphasis added.) This recitation in the judgment is the only finding of fact by the trial judge as to which district court there was a failure to appear in and a forfeiture taken. Without a recitation elsewhere in the record of a specific finding, that the principal failed to appear as alleged in the pleading, and evidence to support such a finding, there is no factual basis for the position, contended for by the State, that the judgment recital that the principal failed to appear “in this court,” the 158th District Court, was a mere drafting error subject to reformation by this Court. In civil cases regulated by Rule 434, T.R.C.P., modification of the judgment by the reviewing court may be made where it appears on the face of the record that modification should be made. Carter v. Barclay, 476 S.W.2d 909, 918 (Tex.Civ.App.—Amarillo, 1972, no writ). We cannot supply that which is not in the record. As on original submission, we hold that the evidence and the judgment nisi are at fatal variance with the final judgment entered on the forfeiture. See Smith v. State, Tex.Cr.App., 548 S.W.2d 407, 408.

The State’s motion for rehearing is overruled.