International Fidelity Ins. Co, Agent Judy Grandmaison-Warren, Surety v. State

Opinion issued

February 17, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

——————————

NO. 01-09-00441-CR

———————————

International

Fidelity Insurance company , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District

Court

Harris County, Texas

Trial Court Case No. 0895218-A

MEMORANDUM

OPINION ON REHEARING

We

deny appellant’s motion for rehearing.

However, we withdraw our opinion and judgment of January 13, 2011 and

issue this opinion and judgment in their place.

International

Fidelity Insurance Company appeals the trial court’s judgment of forfeiture on

a criminal bail bond. After the State instituted forfeiture proceedings,

International Fidelity asserted the statute of limitations as an affirmative

defense. Following a bench trial, the

trial court rendered judgment in favor of the State for the amount of the bond,

$200,000. On appeal, International

Fidelity asserts that the trial court’s judgment of forfeiture in this case is

void due to a prior forfeiture and that the evidence is factually insufficient

to support the trial court’s judgment.

We conclude that the record does not show a prior forfeiture and the

evidence is factually sufficient to support the trial court’s judgment. We affirm.

Background

In

December 2001, International Fidelity bonded Manuel Fantauzzi out of jail. On December 28, 2001, International Fidelity

filed an affidavit to surrender Fantauzzi and relieve itself of liability on

the bond. The trial court granted the

request and issued an alias capias for Fantauzzi’s arrest.

Fantauzzi

was required to appear at a hearing on January 10, 2002. It is disputed whether Fantauzzi appeared at

the hearing. On that same day, the trial

court issued an alias capias for Fantauzzi’s arrest. The case remained dormant until the State

reset a hearing for July 24, 2007, after noticing that records showed Fantauzzi

was out on bond and the case was still open.

When Fantauzzi failed to appear at the July 24, 2007 hearing, the trial

court issued a judgment nisi declaring the bond forfeited.

As

required by article 22.03(a) of the Texas Code of Criminal Procedure, the

bonding company, International Fidelity, was served with citation and given an

opportunity to show cause why the judgment of forfeiture should not be made

final. A bench trial was held on the

forfeiture. International Fidelity

asserted an affirmative defense based on the four-year statute of limitations

applicable to forfeiture proceedings.

After hearing the evidence, the trial court rendered judgment against

International Fidelity for the amount of the bond.

Bond Forfeiture

International

Fidelity asserts that the trial court’s 2007 bond forfeiture was void because

there was a prior forfeiture and there cannot be two forfeitures on the same

bond. International Fidelity also

contends that the trial court’s determination that International Fidelity did

not prove Fantauzzi failed to appear on January 10, 2002 was “against the great

weight and preponderance of the evidence” and that the four-year limitations

period began to run when Fantauzzi failed to appear at that hearing.

A. Standard of Review

Although bond forfeiture cases are criminal matters, b ond forfeiture proceedings are governed by the rules of civil

procedure. T e x. Code Crim.

Proc. Ann . art. 22.10 (West 2009); Ranger Ins. Co. v. State , 312

S.W.3d 266, 268 (Tex. App.—Dallas 2010, pet ref’d). Likewise, in an appeal of a

bond forfeiture proceeding, “the proceeding shall be regulated by the same

rules that govern civil actions where an appeal is taken . . . .” Tex.

Code Crim. Proc. Ann . art. 44.44 (West 2006). Therefore, we apply civil case law concerning

the standard of review. See Alvarez v. State , 861 S.W.2d 878, 881 (Tex.

Crim. App. 1992) (applying summary judgment standard of review to appeal of

summary judgment in bond forfeiture case);

see also Int’l Fid. Ins. Co. v. State , No. 03-09-00539-CR, 2010 WL

4366910 , at *2 n.3 (Tex. App.—Austin Nov. 3, 2010, no pet.) (mem. op., not

designated for publication) (applying civil legal and factual sufficiency

standards of review in bond forfeiture case).

The trial court did not make separate

findings of fact or conclusions of law.

The judgment also does not contain any fact findings. If a trial court does not make separate

findings of fact or conclusions of law, all facts necessary to support the

trial court’s judgment are implied. Gainous v. Gainous , 219 S.W.3d 97, 103

(Tex. App.—Houston [1st Dist.] 2006, pet. denied). These implied fact findings may be challenged

for factual sufficiency of the evidence supporting them. Id.

International Fidelity asserts that

the trial court’s decision that the statute of limitations had not expired (and

its implied finding that Fantauzzi did not fail to appear on January 10, 2002)

is “against the great weight and preponderance of the evidence,” thus raising

a factua l sufficiency challenge. When a party attacks the factual sufficiency

of an adverse finding on an issue on which it has the burden of proof , it must demonstrate on appeal

that the adverse finding is against the great weight and preponderance of the

evidence. Urista v. Bed, Bath, &

Beyond, Inc. , 245 S.W.3d

591, 601 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In reviewing a point of error asserting that a

finding is “against the great weight and preponderance” of the evidence, we

must consider and weigh all of the evidence.

Dow Chem. Co. v. Francis , 46

S.W.3d 237, 242 (Tex. 2001). We must set

aside a verdict only if the evidence is so weak or if the finding is so against

the great weight and preponderance of the evidence that it is clearly wrong and

unjust. Urista , 245

S.W.3d at 601 . “In

an appeal from a bench trial, we may not invade the fact-finding role of the

trial court, which alone determines the credibility of the witnesses, the

weight to give their testimony, and whether to accept or reject all or any part

of that testimony.” Whaley v. Cent. Church of Christ , 227 S.W.3d 228, 231 (Tex.

App.—Houston [1st Dist.] 2007, no pet.); see

also Golden Eagle Archery, Inc. v.

Jackson , 116 S.W.3d

757, 761 (Tex. 2003) (stating that, in factual sufficiency review, court of

appeals may not substitute its judgment for that of factfinder, which is sole

judge of credibility of witnesses and weight to be given to testimony).

B. Law Regarding Bond Forfeitures

Chapter 22 of

the Texas Code of Criminal Procedure governs bond forfeiture proceedings in the trial

court. Tex.

Code Crim. Proc. Ann. arts. 22.01–.18 (West 2009). A bond may be forfeited when

a defendant has posted bond and fails to appear in court as required. Id. art. 22.01. Article 22.02 provides

the procedure for forfeiting bonds:

The 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.

Id. art.

22.02; see Alvarez v. State , 861 S.W.2d at 881 . This judgment is called a “judgment nisi.” See Alvarez , 861 S.W.2d at 880–81. After entry of a

judgment nisi, the sureties and the defendant are issued citation to appear in

the trial court and show cause why the judgment of forfeiture should not be

made final. Tex. Code Crim. Proc. Ann. art. 22.03(a). Article 22.18 provides that the State must

bring an action to forfeit a bond not later than the fourth anniversary of the

date the defendant fails to appear. Id. art. 22.18.

C. Did

International Fidelity prove that Fantauzzi failed to appear at the January 10,

2002 hearing?

International

Fidelity asserts that there cannot be two forfeitures on the same bond and that

Fantauzzi forfeited his bond by failing to appear on January 10, 2002. International Fidelity also contends that the

State’s action to forfeit the bond was untimely because limitations began to

run when Fantauzzi failed to appear at that time. The State does not dispute that there may not

be two forfeitures on the same bond; instead it contends that the record does

not show a prior forfeiture or that Fantauzzi failed to appear on January 10,

2002.

The record

does not show that there were two forfeitures on the bond. As stated above, article 22.02 provides the

procedure for forfeiting a bond. After

the defendant’s name is called and he fails to appear, the trial court enters a

judgment nisi. Tex. Code Crim. Proc. Ann. art. 22.02; Alvarez v. State , 861 S.W.2d at 880–81. The record in this case does not establish by

a preponderance of the evidence that Fantauzzi’s name was called or that the

trial court entered a judgment nisi following the January 10, 2002

hearing. Therefore, the record does not

establish a prior forfeiture.

Furthermore, the evidence is factually

sufficient to support the trial court’s determination that International Fidelity

failed to prove its limitations defense by a preponderance of the

evidence. See Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d

211, 220 (Tex. 2003); see also Burns v.

Rochon , 190 S.W.3d 263, 271 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating

party asserting limitations defense has burden of proving that defense). When, as here, the trial court does not make

separate findings of fact, we imply all facts necessary to support the trial

court’s judgment. Gainous , 219 S.W.3d at 103 . Thus,

to support the trial court’s judgment in this case, we imply a fact finding

that Fantauzzi did not fail to appear on January 10, 2002.

International Fidelity presented two

witnesses concerning Fantauzzi’s failure to appear, Fantauzzi’s counsel from

the January 2002 hearing and the trial court clerk. On the one hand, Fantauzzi’s counsel

testified in his direct examination that to the best of his recollection

Fantauzzi was not present on January 10, 2002.

On the other hand, he testified on cross-examination that he could not

recall whether Fantauzzi was in court that day. There is no evidence in

the record to show the basis for his direct testimony that Fantauzzi did not

appear.

The clerk

testified that he had no recollection of the events on the day in question, but

he also opined that Fantauzzi must have failed to appear; otherwise, the court

would not have ordered an alias capias to be issued that same day based on its

regular practices. He admitted that it

was possible that Fantauzzi appeared in court despite the alias capias. He conceded that the court’s docket sheet

does not indicate whether Fantauzzi was or was not present on the day in

question. He was not asked to explain

the absence of a judgment nisi, which should have been issued if Fantauzzi did

not appear. He testified that the court’s docket sheet for July 24, 2007

contained the court’s “bond forfeiture stamp,” indicating Fantauzzi’s name was

called at the courthouse door but he did not appear, but did not testify concerning

the lack of the stamp on January 10, 2002.

The trial court judge was not only the

factfinder but also the judge on the day in question. He undoubtedly knows the procedures utilized

by his court. In announcing the court’s

decision, he stated:

Through

all the documents I have gone through in trying to find out exactly what

happened on January 10th, 2002, I don’t think anybody really knows. I certainly don’t. I do know this, if that Defendant had not

been here and had not had some excuse that would render his absence acceptable,

I would have forfeited his bond that day.

I’ve looked at it from every angle.

And I try to treat everybody the same.

And unless he was in custody somewhere else, in the hospital, or there

was some good reason for him not being here and it was presented by his lawyer,

I would have forfeited his bond. There

may have been some light that could have been shed on that by these

records. We don’t have them. So, I have to go by what I have seen, and

what I know about the practices of this Court.

So, I

cannot find by a preponderance of the evidence that he was not here. He may

have been here for a while. He may have

gotten ill. He may have had to leave. He may have been in custody. I do not know. But if he was not here and did not have a

good, legal reason for not being here, then I would have forfeited his bond.

Neither party objected then, nor do they object in their

briefs, to the trial court judge’s consideration of his knowledge “about the

practices” of the court.

Weighing all

the evidence, we cannot say, even without the trial court judge’s consideration

of the court’s practices, that the trial court’s determination that

International Fidelity did not prove Fantauzzi’s failure to appear is against

the great weight and preponderance of the evidence. The trial court was free to resolve any

conflicts or inconsistencies and assign whatever weight it deemed appropriate

to the testimony. See G`olden Eagle Archery,

Inc. , 116 S.W.3d at

761 . Accordingly, we hold that the

evidence is factually sufficient to support the trial court’s judgment.

In its motion

for rehearing, International Fidelity asserts that the trial court improperly

considered matters outside the record.

But International Fidelity did not raise that objection in the trial

court or in its brief. Rather,

International Fidelity first raised this issue in its motion for

rehearing. Therefore, this issue is

waived. Coastal Liquids Transp. v. Harris County Appraisal Dist. , 46 S.W.3d

880, 885 (Tex. 2001). We acknowledge that

International Fidelity did mention the trial court’s consideration of matters

outside the record, but it only did so as part of its issue challenging the

sufficiency of the evidence; it did not raise a separate issue asserting that

the trial court erred by considering matters outside the record. We have addressed the sufficiency of the

evidence above.

In the end,

it is clear that International Fidelity asserts that the trial court “made a

mistake” because either (1) Fantauzzi appeared on January 10, 2002 and the

trial court failed to arrest him as required by the alias capias issued on

December 28 or (2) Fantauzzi failed to appear and the court should have issued

a judgment nisi. Even setting aside the

judge’s statement about the court’s practices, the trial court could have found

that International Fidelity failed to prove which of the two events occurred by

a preponderance of the evidence.

Finally, on

rehearing, Interational Fidelity also argues that the forfeiture of the bond

punishes it when it did nothing wrong. A

surety, however, assumes certain risks when it issues a bond. And trial courts do make mistakes. The surety here put on no evidence that it

followed up after December 28, 2001 to ensure that Fantauzzi was arrested. While it may not be required to do so, such

action would have caught the trial court’s purported mistake at a time it could

have been corrected and when the evidence concerning the January 10 hearing was

still fresh.

We overrule International Fidelity’s

sole issue.

C onclusion

We

affirm the judgment of the trial court.

Harvey

Brown

Justice

Panel consists of Chief

Justice Radack and Justices Massengale and Brown.

Do not publish. Tex. R. App. P. 47.2( b)