Steve Orr v. State of Texas

ORR V. STATE

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-90-275-CV

STEVE ORR,

APPELLANT

vs.

STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 411,325, HONORABLE JON N. WISSER, JUDGE

This is a bond-forfeiture case. Steve Orr, appellant, was the surety on a $50,000

bail bond posted on behalf of Louis Andrews, Jr., who was charged with aggravated possession

of heroin. Andrews failed to appear for trial on the offense, whereupon the trial court entered a

judgment nisi against both Orr and Andrews. After a subsequent trial on the bond-forfeiture

issue, in which Orr entered an appearance but Andrews did not, the trial court rendered a final

judgment holding Orr liable on the bond and nonsuiting Andrews. Orr perfected this appeal. In

four points of error, Orr (1) challenges the legal and factual sufficiency of the evidence to support

the trial court's judgment; (2) argues that the trial court abused its discretion in rendering

judgment against him because there were fatal variances between the bond and the judgment nisi;

and (3) argues that the trial court erred in nonsuiting Andrews. We will affirm.

BACKGROUND

In Complaint No. 86-MC-0968, filed in June 1986 in the Municipal Court of the

City of Austin, Louis Andrews, Jr. was accused of aggravated possession of heroin. Bond was

set at $50,000. Thereafter, on June 18, 1986, Steve Orr, as surety, posted a $50,000 bond on

behalf of Andrews. The bond provided that Andrews was to appear "before the 147th Judicial

District Court of Travis County, Texas or before such Judicial District Court to which this cause

has or may be transferred as provided by law." Subsequently, in July or August of 1986, a grand

jury indicted Andrews for the same offense: aggravated possession of heroin. The cause,

docketed as Cause No. 83,286, was set for October 27, 1986, in the 299th Judicial District Court

of Travis County, Texas. Andrews failed to appear in the designated court on that date;

accordingly, a judgment nisi was rendered against both Orr and Andrews in the 299th District

Court, that they forfeit the $50,000 bond.

Following the judgment nisi, the State instituted a civil proceeding, Cause No.

411,325, for the purpose of finalizing the judgment. A trial was held on October 19, 1990, in the

299th District Court. Orr appeared for trial; Andrews did not. The trial court took judicial notice

of the court files in both Cause Nos. 411,325 and 83,286, as well as the docket sheet in Cause

No. 83,286. Orr made no objections and offered no evidence. The trial court then rendered

judgment holding Orr liable on the bond and nonsuiting Andrews.

STANDARD OF REVIEW

In his first and second points of error, Orr challenges the legal and factual

sufficiency of the evidence to support the trial court's judgment. In addressing Orr's legal-sufficiency point, we must consider only the evidence and the inferences tending to support the

challenged finding and disregard all evidence and inferences to the contrary. Alm v. Aluminum

Co. of Am. , 717 S.W.2d 588, 593 (Tex. 1986); Garza v. Alviar , 395 S.W.2d 821, 823 (Tex.

1965). In addressing Orr's factual-sufficiency point, we must, after considering all the evidence,

determine whether the evidence supporting the finding is so weak or the answer so contrary to the

overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain ,

709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate , 244 S.W.2d 660, 661-62 (Tex. 1951).

In his third point of error, Orr asserts that the trial court abused its discretion. In

order to sustain this point, we must conclude that the trial court acted in an unreasonable or

arbitrary manner; in other words, the trial court must have acted without reference to any guiding

rules and principles. Beaumont Bank, N.A. v. Buller , 806 S.W.2d 223, 226 (Tex. 1991).

DISCUSSION

We begin our analysis with a brief discussion of the bond-forfeiture process. The

Code of Criminal Procedure provides:

[w]hen a defendant is bound by bail to appear and fails to appear in any court in

which such case may be pending and at any time when his personal appearance is

required under this Code, or by any court or magistrate, a forfeiture of his bail and

a judicial declaration of such forfeiture shall be taken in the manner provided in

Article 22.02 of this Code and entered by such court.

Tex. Code Crim. Proc. Ann. art. 22.01 (1989). Article 22.02 provides:

[t]he 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 (1989). This judgment against the principal and sureties

forfeiting the bail bond is known as a "judgment nisi."

A judgment nisi, however, is not a final judgment forfeiting the bond; rather, it is

in the nature of an interlocutory judgment. Hokr v. State , 545 S.W.2d 463, 465 (Tex. Crim.

App. 1977). Once a judgment nisi has been rendered, the State must institute a civil proceeding

against the principal and sureties in order to obtain a final judgment forfeiting the bail bond. The

civil proceeding is governed by the same rules governing other civil suits. Tex. Code Crim. Proc.

Ann. art. 22.10 (1989). In order to institute the civil proceeding, the State must serve on the bond sureties a citation, along with a copy of the judgment nisi, notifying the sureties

that the bond has been forfeited and instructing them to appear and show cause why the judgment

nisi should not be made final. It is not necessary, however, to give notice to the principal on the

bond (i.e., the criminal defendant) unless he has furnished his address on the bond, in which event

notice to the principal shall be deposited in the mail directed to the principal at the address shown

on the bond. Tex. Code Crim. Proc. Ann. arts. 22.03, 22.04, 22.05 (1989). Once duly served

with citation, the sureties on the bond may then file an answer within the time allowed for filing

an answer in other civil actions. Tex. Code Crim. Proc. Ann. art. 22.11 (1989).

In order to carry its burden of proof at trial, the State must establish: (1) the

existence of a bond requiring the principal to appear before a court to answer a particular charge;

and (2) the existence of a judgment nisi, entered by the court before which the bond required the

principal to appear, evidencing that the principal failed to appear at the required time and that the

requirements of article 22.02 of the Code of Criminal Procedure were complied with. Tocher v.

State , 517 S.W.2d 299, 300 (Tex. Crim. App. 1975); Serrano v. State , 804 S.W.2d 543, 544

(Tex. App. 1991, no pet.). Once the State has provided the court with evidence of such a bond

and judgment nisi, the burden of proof shifts to the principal and sureties on the bond:

A judgment nisi is prima facie proof that the statutory requirements have been

satisfied and the burden is on the defendant to affirmatively show otherwise. It is

well settled that the State's case in a bond forfeiture proceeding consists of the

bond and the judicial declaration of the forfeiture of the bond, which is the

judgment nisi. . . . Once this has been established, the defendant [the principal

and sureties on the bond] must then prove that one of the elements has not been

complied with.

Tocher , 517 S.W.2d at 301 (citations omitted). Therefore, if the State carries its burden of proof

by presenting the trial court with a bond and a judgment nisi supported by that bond, the trial

court must render a final judgment forfeiting the bond unless the principal and sureties are able

to show cause why the judgment nisi should not be made final. Tex. Code Crim. Proc. Ann. art.

22.14 (1989).

THE PRESENT CASE

In the present case, the State obtained a judgment nisi against Orr on a $50,000

bond. The State thereafter instituted a civil proceeding to finalize the judgment nisi forfeiting the

bond. In response to the citation, Orr filed a general denial. At the subsequent trial, wherein Orr

made an appearance but Andrews did not, the State requested that the trial court take judicial

notice of the court's own files in the criminal case wherein the judgment nisi was rendered, Cause

No. 83,286, and the present civil case, Cause No. 411,325. These files contained, among other

things, the bond on which the State was suing and the judgment nisi forfeiting the bond. This was

the only evidence presented to the trial court; Orr presented no evidence and made no objections.

Based on that record, the trial court rendered a final judgment holding Orr liable on the bond and

nonsuiting Andrews.

Orr did not attempt to show good cause why Andrews did not appear, nor did he

attempt to show that the State failed to comply with article 22.02 of the Code of Criminal

Procedure. Instead, Orr argues on appeal that the State failed to carry its initial burden of proof

at trial, i.e, failed to establish the existence of a valid bond and a judgment nisi supported by the

bond. Specifically, Orr argues that there is legally and factually insufficient evidence to show that

(1) the court before which the bond in question required Andrews to appear was the same court

that rendered the judgment nisi; and (2) the bond on which the State sued pertained to the same

offense for which the principal failed to appear on the required date. (1)

1. 147th versus 299th Judicial District Court

Orr asserts that there is a fatal variance between the bond and the judgment nisi and

that, as a result, the bond does not support the judgment nisi. He points to the language in the

bond requiring Andrews to appear in the 147th Judicial District Court, whereas the judgment nisi

provides that Andrews failed to appear in the 299th Judicial District Court. We agree that such

a variance, if it existed, could be fatal. See, e.g., George v. State , 589 S.W.2d 428 (Tex. Crim.

App. 1979); Smith v. State , 548 S.W.2d 407 (Tex. Crim. App. 1977). However, Orr ignores

certain critical language in the bond. As quoted above, the bond provided that Andrews was to

appear before the 147th Judicial District Court "or before such Judicial District Court to which

this cause has or may be transferred as provided by law . . . ." The critical question, therefore,

is whether there is sufficient evidence in the record to show that Andrews's case was transferred

from the 147th to the 299th Judicial District Court before the date the judgment nisi was rendered.

Having reviewed the record, we conclude that there is sufficient evidence that

Andrews's case was "transferred" to the 299th District Court. The bond in question recited that

Andrews had been charged with aggravated possession of heroin in Complaint No. 86-MC-0968.

The grand-jury indictment, filed in the 299th District Court, charged Andrews with aggravated

possession of heroin, just as Complaint No. 86-MC-0968 had. Further, noted at the top of the

indictment was the same complaint number: "86-MC-0968." Finally, approximately two months

before the judgment nisi was rendered, Orr, as surety on the bond, filed a motion to "surrender"

the principal, i.e., to have Andrews re-arrested. That motion was filed in the 299th District

Court. Thus, Orr himself demonstrated an awareness that Andrews's case was pending in the

299th District Court before the judgment nisi was rendered by that court.

Based on our discussion above, we conclude that there is sufficient evidence to

show that Andrews's case was transferred from the 147th District Court to the 299th. The bond

provided that Andrews was to appear before the 147th or any other district court to which the case

was lawfully transferred. Thus, we conclude that no fatal variance exists between the court

designated in the bond and the court designated in the judgment nisi.

2. Indictment versus Complaint

Orr also argues that the evidence is insufficient to show that the indictment returned

against Andrews was for the same offense alleged against Andrews in municipal court in

Complaint No. 86-MC-0968. Therefore, Orr asserts, there is insufficient evidence to show that

the bond on which the State is suing pertains to the same offense that he failed to answer in the

299th. For the reasons discussed in the preceding section, this argument is without merit.

3. Nonsuit

In his fourth point of error, Orr argues that the trial court erred in nonsuiting

Andrews because the principal is a necessary and indispensable party to any suit and judgment on

a bond. We disagree.

First, Orr failed to object to the nonsuit in the trial court. Therefore, he waived

any error. Tex. R. App. P. 52(a).

Moreover, even if he had preserved his complaint on the nonsuit issue, Orr failed

to establish that the trial court acted improperly. Orr cites Tex. R. Civ. P. 31 and Tex. Civ.

Prac. & Rem. Code Ann. § 17.001 (1986) for the proposition that a judgment may not be

rendered against a party not primarily liable unless judgment is also rendered against the principal

obligor. While this may be the general rule, a surety may nonetheless be sued without suing the

principal if the principal "resides in a place that is unknown and cannot be ascertained by the use

of reasonable diligence." § 17.001(b)(2).

Several factors combine to raise a reasonable inference that Andrews was a fugitive

from the law at the time the final judgment in this cause was rendered: Orr's motion that

Andrews be re-arrested; Andrews's failure to appear at his criminal trial; the judgment nisi;

Andrews's failure to appear at the civil trial making the judgment nisi final; and the still-outstanding arrest warrant. Thus, we conclude that the record contains sufficient evidence to

indicate that Andrews resided in an unknown place that could not be ascertained by the use of

reasonable diligence. Accordingly, the trial court did not err in nonsuiting Andrews while holding

Orr liable on the bond. See General Bonding & Casualty Ins. Co. v. State , 165 S.W. 615, 617

(Tex. Crim. App. 1913) (holding that it was not error to dismiss the principal in a bond-forfeiture

case when the principal was a fugitive from the law); Hodges v. State , 165 S.W. 613, 614 (Tex.

Crim. App. 1913).

Orr also relies on Smith v. State , 529 S.W.2d 549 (Tex. Crim. App. 1975); Joe's

Bonding Co. v. State , 481 S.W.2d 145 (Tex. Crim. App. 1972); Saunders v. State , 217 S.W. 949

(Tex. Crim. App. 1920); and Brown v. State , 40 Tex. 49 (1874), as well as Tex. Code Crim.

Proc. Ann. art. 22.14 (1989). Orr's reliance on these authorities is misplaced. They merely stand

for the proposition that the final judgment in a bond-forfeiture case must dispose of all parties to

the suit, including the principal. In the present case, the final judgment did make a final

disposition as to the principal on the bond -- he was nonsuited.

CONCLUSION

We conclude that the record contains legally and facually sufficient evidence to

support the trial court's final judgment. We also conclude that the trial court did not act

arbitrarily or unreasonably in rendering judgment holding Orr liable on the bond and nonsuiting

Andrews. Therefore, we overrule Orr's four points of error and affirm the judgment of the trial

court.

J. Woodfin Jones, Justice

[Before Justices Powers, Jones and Kidd]

Affirmed

Filed: April 22, 1992

[Do Not Publish]

1. Before addressing Orr's arguments, we note that the State specifically requested the trial

court to take judicial notice of its own records, including the bond and judgment nisi contained

therein. It is well settled that a trial court may take judicial notice of its own files in a

proceeding. See Hokr , 545 S.W.2d at 466 (holding that the trial court may take judicial notice

of the judgment nisi); see also Deckard v. State , 608 S.W.2d 675, 676 (Tex. Crim. App.

1980) (holding that it was not necessary for the State to attach the bond and judgment nisi to a

motion for summary judgment because the documents were already a part of the trial court's

record in the case). Further, Orr made no objection to the trial court's taking judicial notice

of the files, and both the State and Orr, as well as the trial court, have treated the documents

contained in those files as evidence. See Ex parte Reagan , 549 S.W.2d 204, 205 (Tex. Crim.

App. 1977); Killion v. State , 503 S.W.2d 765, 766 (Tex. Crim. App. 1973). Finally, Orr

does not complain on appeal of the inclusion of the bond and judgment nisi as part of the

appellate record. We conclude that the trial court properly considered the bond and judgment

nisi as part of the evidence.