uncontested judgment nisi recital that the defendant’s name was called at the “courthouse door” served as conclusive proof
How later courts described this case
- uncontested judgment nisi recital that the defendant’s name was called at the “courthouse door” served as conclusive proof
- denial of execution, failure of principal to appear, whether name called at courthouse door, and reason for non-appearance all fact issues
- opinion on State’s second motion for rehearing
- opinion on second motion for rehearing
Written by the judges who cited it.
The opinion
OPINION ON STATE’S SECOND MOTION FOR REHEARING
DOUGLAS, Judge.
On the original submission the bail forfeiture was reversed because there was no criminal district court in Taylor County and the bond provided that Wanda Har-man, the accused, was to appear before any criminal district court of Taylor County.
As noted in the dissenting opinion Wanda Harman, the principal, appeared in the District Court of Taylor County and answered approximately two months before but did not appear on the trial date.
*191 Although not squarely in point, this situation is somewhat analogous to that where there is an irregular citation in a civil case. Even if such a citation is not legally sufficient and a defendant makes a general appearance and answers, he has waived any error in such citatiom See Texas Rules of Civil Procedure 120. Huber v. Buder, Civ.App.1963, 434 S.W.2d 177 , ref., n. r. e.; White v. Zoning Board of Adjustment of City of Arlington, Civ.App.1963, 363 S.W.2d 955 . See also Bonds v. State, 162 Tex.Cr.R. 419 , 286 S.W.2d 313 . Even though the provision for appearance was in the bond and not in the citation, Wanda Harman, by appearing, shows that she knew where to appear. This does not present reversible error. See Blaine v. State, Tex.Cr.App., 494 S.W.2d 916 .
Other questions raised on original submission will be considered.
Appellants’ first point of error is that there is a fatal variance between the appearance bond and the indictment, the judgment nisi and the final judgment because the principal named on the bond is Wanda Starr Harman and the middle name Starr was omitted from the other instruments. The appellants’ eleventh ground of error is that the State failed to prove that Wanda Starr Harman and Wanda Harman are one and the same person.
The middle name is not essential, and deleting or adding the middle name or middle initial does not create a variance. Thompson v. State, 169 Tex.Cr.R. 495 , 335 S.W.2d 226 . Harris v. State, 169 Tex.Cr.R. 298 , 333 S.W.2d 381 , and Lott v. State, 164 Tex.Cr.R. 395 , 299 S.W.2d 145 .
The appellants’ points of error Nos. Two, Three, Eight and Ten have been briefed and argued together and they will be so considered here. In these points of error, it is urged that the bonds were not valid and enforceable because they did not reflect the offense with which the principal was charged and do not designate the
time nor the court in which the principal is to appear.
The faces of the bonds reflect that the principal was charged with “a felony offense.” This is sufficient. Article 17.-08(3), Vernon’s Ann.C.C.P.; Pharis v. State, Tex.Cr.App., 362 S.W.2d 857 ; Rees v. State, Tex.Cr.App., 13 S.W.2d 856 ; Holley v. State, 70 Tex.Cr.R. 511 , 157 S.W. 937 ; Barrett v. State, 68 Tex.Cr.R. 205 , 151 S.W. 558 ; Davis v. State, 56 Tex.Cr.R. 131 , 119 S.W. 95 . In the affidavit of the sureties on the bonds it is recited that the “ . . . affiant desires and proposes to become surety for Wanda Starr Harman in connection with shoplifting.
The appellants have briefed and argued points of error Nos. Four, Five, Six, Seven, Nine, Twelve, Thirteen and Fourteen together and we will consider and discuss them together as they all complain that the appellants were deprived of jury findings on various issues of fact.
It is stipulated that the appellants had made a proper and timely request for a jury trial. Jury trials are seldom sought in bond forfeiture cases. This may be because there are rarely issues of fact requiring jury determination, but if there are disputed issues of fact, a jury determination of such issues may be had in bond forfeiture cases. Short v. State, 16 Crim.R. 44 (1884). However, where no fact issue exists, the court may refuse a jury trial and render judgment. See Abbott v. State, 45 Tex.Cr.R. 514 , 78 S.W. 510 .
The appellants insist there was a question as to “whether or not Wanda Harman was present in District Court in Taylor County on June 5, 1972,” and whether her name was called at the courthouse door. The State’s proof was the judgment nisi which states she was not present at the designated time and that her name was called at the courthouse door. A fact issue is not raised as there is nothing in the record to rebut the State’s evi *192 dence. See Bennett v. State, Tex.Cr.App., 394 S.W.2d 804 , and Deem v. State, 170 Tex.Cr.R. 564 , 342 S.W.2d 758 .
Appellants contend there was a fact issue raised as to whether the principal and sureties were notified to be present in District Court of Taylor County on June 5, 1972.
Appellants gave an insufficient address on the bond to require mailing of the notice under Article 22.05, V.A.C.C.P. However, it is not necessary that the principal write his address on the bond, as the absence of it will not exonerate either the principal or the surety. Hall v. State, Tex.Cr.App., 485 S.W.2d 563 . Article 22. 03, V.A.C.C.P., states: “Upon entry of judgment, a citation shall issue forthwith notifying the sureties . . . that the bond has been forfeited. . . . ” This statute only requires notice to the surety of the forfeiting proceeding. See also Article 22.05, supra.
Another fact issue alleged is whether or not the principal had a valid reason for not appearing in court because of abuse from an assistant district attorney or for some other reason. As the principal had not appeared before final judgment or submitted a controverting affidavit showing sufficient cause for the principal not being present on the date set for trial, no question of fact was presented. Article 22.13(3), V.A.C.C.P.; James v. State, Tex.Cr.App., 413 S.W.2d 111 , and Bowen v. State, Tex.Cr.App., 413 S.W.2d 915 .
The appellants argue there is a question of fact as to whether the principal executed the bonds. The appellants did not under oath plead non est factum denying the obligations, which is required in order to raise a fact issue concerning the execution of the bonds. Glover v. State, 171 Tex.Cr.R. 156 , 346 S.W.2d 121 ; Dyches v. State, 24 Tex. 266 (1859).
Since no issues of fact were shown to have been raised, the appellants were not erroneously deprived of a jury trial. See Abbott v. State, supra.
Other contentions raised have been considered and they are overruled.
The State’s motion for rehearing is granted. The judgments are now affirmed.