Bradley Stephen Bowen v. the State of Texas

NO. 12-21-00162-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BRADLEY STEPHEN BOWEN, § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Bradley Stephen Bowen appeals from his conviction for bail jumping and failure to
appear. In a single issue, he contends the evidence is legally insufficient to support his
conviction. We affirm.
BACKGROUND
Appellant was arrested and charged by indictment with assault family violence impeding
breath or circulation. He appeared for his arraignment on August 20, 2020, with his attorney via
Zoom. At that time, he was given oral notice of future hearing dates of October 16 and
November 20. Another hearing for September 3 was set for the trial court to consider setting
bond. Appellant made bond on October 26. Appellant failed to appear for the November 20
hearing and was subsequently indicted for bail jumping and failure to appear. The State filed a
notice of enhancement paragraphs to be submitted to the jury on punishment. Appellant pleaded
“not guilty,” and the matter proceeded to a jury trial. Ultimately, the jury found Appellant
“guilty” as charged, found the enhancement paragraphs to be “true,” and sentenced Appellant to
forty years of imprisonment. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his sole issue, Appellant contends the evidence is legally insufficient to support his
conviction.
Standard of Review and Applicable Law
The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307, 315-16, 99
S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979). The standard for reviewing a legal sufficiency
challenge is whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). We examine the evidence in
the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789;
Johnson, 871 S.W.2d at 186. The jury is the sole judge of the witnesses’ credibility and the
weight to be given to their testimony. Brooks, 323 S.W.3d at 899; see also Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.]
1981). We give full deference to the factfinder’s responsibility to fairly resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). If the record contains
conflicting inferences, we must presume that the factfinder resolved such facts in favor of the
verdict and defer to that resolution. Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We also “‘determine whether the necessary inferences
are reasonable based upon the combined and cumulative force of all the evidence when viewed
in the light most favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214
S.W.3d at 16-17).
In order to convict a defendant of the offense of bail jumping and failure to appear, the
state is required to prove beyond a reasonable doubt that the defendant (1) was lawfully released
from custody, with or without bail; (2) on the condition that he subsequently appear; and (3) that
he intentionally or knowingly failed to appear in accordance with the terms of his release.
Ferguson v. State, 506 S.W.3d 113, 115 (Tex. App.—Texarkana 2016, no pet.); see TEX. PENAL
CODE ANN. § 38.10(a) (West 2016). The culpable mental state cannot be shown “absent proof
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the defendant had notice of the proceeding at which he failed to appear.” Richardson v. State,
699 S.W.2d 235, 238 (Tex. App.—Austin 1985, pet. ref’d) (per curiam) (op. on reh’g). Proof
that a defendant is free under an instanter bond is prima facie proof of notice to appear. Johnson
v. State, 416 S.W.3d 602, 606 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Euziere v.
State, 648 S.W.2d 700, 702 (Tex. Crim. App. 1983). In order to be adequate proof, the bond
must state whether the defendant is charged with a misdemeanor or felony and must set forth the
time, place, and court where the defendant is required to appear. Ferguson, 506 S.W.3d at 116;
TEX. CODE CRIM. PROC. ANN. art. 17.08 (West 2015).
Analysis
On appeal, Appellant attacks the sufficiency of the instanter bond. At trial, the State
offered a copy of Appellant’s appearance bond into evidence, which provides, in pertinent part:
The condition of the above obligation is such that the above named principal stands charged
with . . . Assault fam/house mem. impede breath/cir . . .in the District court of Anderson County,
Texas.
Now is the said principal shall well and truly make his personal appearance before the said court,
upon instanter of the Court and further, shall well and truly make his personal appearance before
any court or magistrate, upon notice of said court or magistrate, to which said charge may be
transferred or before whom this cause may hereafter be pending at anytime when, and any place
where his presence may be required under the Code of Criminal Procedure of the State of Texas or
by any court or magistrate. Upon notice of said court or magistrate, and for all subsequent
proceedings had relative to said charge and there remains from day to day and term to term, until
discharged by due course of law. Then and there answer the said accusation against him. Then
this obligation shall become null and void, otherwise to remain in full force and effect.
The check box to mark whether Appellant was charged with a misdemeanor or felony was left
unchecked. And the bond did not identify the specific Anderson County district court. The face
of the bond demonstrates that, although it contained a cause number, the bond failed to advise
Appellant of (1) the name of the court in which he was to appear to answer the charge listed in
the underlying offense, (2) the date on which he was to appear in court, (3) the time at which he
was to appear in court, and (4) whether the underlying offense was a felony or misdemeanor.
Accordingly, we agree with Appellant that the bond wholly fails as prime facie evidence that
Appellant received actual notice of the date of his trial. See Fish v. State, 734 S.W.2d 741, 743–
44 (Tex. App.—Dallas 1987, pet. ref'd); Richardson, 699 S.W.2d at 238.
The failure of the instanter bond does not necessarily defeat the State’s case. When “the
instanter bond does not show prima facie evidence that the defendant had actual notice,” “the
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state must do more than prove the terms of the bond in order to meet its burden of proving an
intentional or knowing failure to appear.” Bell v. State, 63 S.W.3d 529, 531-32 (Tex. App.—
Texarkana 2001, pet. ref’d) (citing Fish, 734 S.W.2d at 743–44; Richardson, 699 S.W.2d at
238). “In such cases, the state must offer evidence that the defendant did have actual notice, or
that he engaged in a course of conduct designed to [avoid] receiving notice.” Id. at 532. Thus,
the State must prove Appellant knew he was supposed to appear for the hearing on November
20.
The record demonstrates that Appellant was aware the underlying offense was pending in
the 349th Judicial District Court of Anderson County, Texas. The State offered a copy of the
court’s docket sheet, which indicates Appellant and his attorney appeared via Zoom for his
arraignment on August 21, 2020 and Appellant was notified at that time to appear for pretrial on
October 16 and a status hearing on November 20. James Sharp, bailiff for the 349th District
Court, testified that he called Appellant’s name three times for the status hearing on November
20, Appellant did not appear, and Sharp filled out a certificate of failure to appear. 1 Sharp also
confirmed the information listed on the court’s docket sheet. In addition, the trial court mailed a
notice of the November 20 status hearing to both the jail and the address listed on the bond. The
notice of setting was delivered to Appellant in jail on September 3 according to the jail mail log.
The notice, order setting hearing, certificate of failure to appear, and jail mail log were all
admitted into evidence. However, Appellant failed to appear for the November 20 status hearing.
He was found in Mississippi in February 2021 and extradited back to Texas.
It is a defense to prosecution that a defendant has a reasonable excuse for his failure to
appear in accordance with the terms of his release. TEX. PENAL CODE ANN. § 38.10(c).
Appellant offered no excuse for his failure to appear. There is evidence that Appellant received
actual notice of his status hearing, both at his arraignment and via mail at both the jail and the
address listed on the bond. And there is no evidence that Appellant received directions by the
trial court, his attorney, or his bondsman contrary to the terms of the bond agreement. Nor was
there evidence Appellant was “discharged by due course of law.” Therefore, based on this
record, a rational jury could have believed Appellant intentionally and knowingly failed to
1
We note that the notice of setting told Appellant to appear at 9:00 am on November 20 and that the
bailiff’s certificate states that Appellant was called at 11:00 am. However, Appellant does not argue that he
appeared at 9:00 am and subsequently left before being called. Nor is there evidence in the record that Appellant
appeared at any point for the November 20 hearing.
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appear in accordance with the terms of his release. See Tucker v. State, No. 10-17-00154-CR,
2018 WL 6543944, at *3 (Tex. App.—Waco Dec. 12, 2018, pet. ref’d) (mem. op., not designated
for publication) (finding that bond was sufficient to establish mental state and that no evidence
showed contrary); Ferguson, 506 S.W.3d at 119-21 (finding evidence insufficient to prove bail
jumping when bond was not prima facie proof and no one sent appellant notice of court date or
had other actual knowledge of need to appear). Accordingly, we overrule Appellant’s sole issue.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
GREG NEELEY
Justice
Opinion delivered July 20, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 20, 2022
NO. 12-21-00162-CR
BRADLEY STEPHEN BOWEN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. 349CR-21-34870)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.