Alex R. Hernandez, Doing Business as Hernandez Bonding Company and Fermin Herrera v. State

NUMBER 13-99-143-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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ALEX R. HERNANDEZ DOING

BUSINESS AS HERNANDEZ BONDING

COMPANY AND DANIEL PEDRO

VASQUEZ, Appellants,

v.

THE STATE OF TEXAS, Appellee.

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AND

NUMBER 13-99-146-CV

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ALEX R. HERNANDEZ DOING

BUSINESS AS HERNANDEZ BONDING

COMPANY AND FERMIN HERRERA, Appellants,

v.

THE STATE OF TEXAS, Appellee.

____________________________________________________________________

____________________________________________________________________

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

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Justice Yañez

These two cases were consolidated on appeal at the request of appellant, Alex R. Hernandez, d/b/a Hernandez Bonding Company ("Hernandez").⁽¹⁾ Also listed as appellants are Pedro Vasquez and Fermin Herrera.⁽²⁾ Appellants challenge the trial court's judgments awarding ordering bonds posted by Vasquez and Herrera to be forfeited to the State. We affirm as modified.

Vasquez was indicted for possession of marijuana, more than fifty pounds, less than 2000 pounds, and was released upon posting a bond set at $50,000. In an unrelated case, Herrera was indicted for possession of marijuana, more than five pounds, less than fifty pounds, and posted a $10,000 bond. Hernandez was the surety on both bonds. Neither Vasquez nor Herrera appeared on their appointed court dates, and separate judgments nisi, declaring forfeiture, were issued against them and Hernandez. On December 21, 1998, the trial court held hearings to determine whether Vasquez and Herrera had just cause for failing to appear on their respective trial dates. Following the hearings, at which Vasquez and Herrera failed to appear, the court rendered final judgment, ordering that the State recover the value of the bonds, plus costs of suit and post-judgment interest.

The appellants challenge the judgments in each cause with two issues. Because the issues and facts in each case, are identical, we will address the two appeals with one opinion.

In their second issue, appellants contend that the surety, Hernandez, did not receive proper notice of the forfeiture hearings and did not appear at the hearings, thus it was error for the trial court to order the bonds forfeited.

The records from the hearings clearly show that Hernandez was present at the hearings. The reporter's records for the hearings show that Hernandez spoke at both hearings. At the hearing on the Vasquez bond Hernandez answered a question by the judge as to whether Hernandez had a partner in his bonding company. During the Herrera hearing Hernandez stated that he had no objections to the State's evidence. Hernandez did not complain to the trial court of a lack of notice.

"The law presumes that a trial court will hear a case only after proper notice to the parties. To rebut this presumption, appellant has the burden to show affirmatively a lack of notice by affidavit or competent evidence." Bruneio v. Bruneio, 890 S.W.2d 150, 155 (Tex. App.--Corpus Christi 1994, no writ). Hernandez filed motions for new trial following judgment in both of these cases.⁽³⁾ The motions were not ruled upon by the trial court; thus, they were overruled by operation of law. Tex. R. Civ. P. 329b(c); Cecil v. Smith, 804 S.W.2d 509, 511 (Tex. 1991). Hernandez offered no evidence in support of the motions. Without an affidavit supporting his claim that he received no notice, Hernandez's motions for new trial were defective. Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 673 (Tex. App.--Fort Worth 1996, no writ). Hernandez has offered no evidence to rebut the presumption that he received proper notice of the forfeiture hearings in question. Further, an appearance by a party constitutes waiver of service. Tex. R. Civ. P. 124; Spivey v. Holloway, 902 S.W.2d 46, 48 (Tex. App.--Houston [1st Dist] 1995, no writ); Houston Crushed Concrete v. Concrete Recycling Corp., 879 S.W.2d 258, 260 (Tex. App.--Houston [14th Dist.] 1994, no writ); Dodson v. Seymour, 664 S.W.2d 158, 161 (Tex. App.--San Antonio 1983, no writ). Issue number two is overruled.

With their first issue, appellants argue that a judgment on a bond forfeiture may not include post-judgment interest. The State concedes this point. The parties disagree as to the remedy available on appeal.

We agree that the trial court erred in awarding post-judgment interest. This issue has been addressed by the Dallas Court of Appeals. Bailout Bonding Co. v. State, 797 S.W.2d 275, 277-278 (Tex. App.--Dallas 1990, pet. ref'd). The Dallas Court noted that a "penal judgment, that is, a judgment in the nature of a fine, must not exceed the penal sum fixed by the bond." Id. "A judgment on such a bond is in the nature of punishment." Id. at 278. (quoting Magless v. State, 112 Tex. Crim. 646, 18 S.W.2d 669, 670 (1929)). The "sum recoverable for noncompliance with the conditions of a bail bond is a penalty." Magless, 18 S.W.2d at 670. Awarding interest on a bail bond would result in the forfeiting party being required to pay an amount in excess of the penalty set by the bond.

The award of post-judgment interest was error. Issue number one is sustained.

We MODIFY the judgment to delete the award of post-judgment interest, and AFFIRM as modified.

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LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

24th day of August, 2000.

1. Hernandez is an appellant in both of these appeals.

2. Vasquez is an appellant in cause number 13-99-143-CR, Herrera in cause number 13-99-146-CR.

3. Hernandez's motion simply alleges that he was deprived of a fair and impartial trial and that new evidence material to the defense was discovered after trial. There is no evidence attached to either motion.