Noemi Alvarez and Ranger Insurance Company and its agent, Rodney Vannerson d/b/a Aaron Bail Bonds v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Opinion filed June 2, 2005.

In The

Fourteenth Court of Appeals

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NOS. 14-04-00215-CR &

14-04-00216-CR

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RANGER INSURANCE COMPANY AND ITS AGENT,

RODNEY VANNERSON D/B/A AARON BAIL BONDS, Appellants

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 919,156A & 920,319A

M E M O R A N D U M O P I N I O N

This is a bail bond forfeiture case. Noemi Alvarez, who had been released on bond, failed to appear for a hearing in her criminal cases, and the trial court rendered judgments nisi against Alvarez and appellants, the surety and agent for Alvarez=s bonds. The trial court subsequently entered final judgments in both causes declaring forfeiture of the bonds in favor of the State. Appellants appeal the trial court=s judgments of forfeiture, arguing the trial court erred in granting judgments in favor of the State and in overruling their motions for new trial because performance of the bonds was rendered impossible as a result of Article 102 of the Honduran Constitution, which prohibits the extradition of Honduran citizens. We affirm.

Factual and Procedural Background

Alvarez was charged with two offenses of intoxication manslaughter, and appellants, Ranger Insurance Company and its agent, Rodney Vannerson d/b/a Aaron Bail Bonds, posted a $25,000.00 bail bond for Alvarez in each cause. On September 10, 2002, Alvarez failed to answer her criminal charges in the 184th District Court of Harris County, Texas. On September 13, 2002, the trial court entered judgments nisi against Alvarez and appellants in the amount of the bonds. After being served with a copy of the judgments nisi, appellants filed answers in which they generally denied the allegations in the judgments nisi and asserted various affirmative defenses.

On December 4, 2003, the trial court entered final judgments of forfeiture against Alvarez and appellants and in favor of the State for $25,000.00 plus costs of court in each cause. Appellants timely filed motions for new trial in which they alleged Alvarez=s failure to appear did not result from any fault of the appellants and the only factor preventing appellants from producing Alvarez before the trial court is Article 102 of the Honduran Constitution which provides that no Honduran will be expatriated nor turned in by the authorities to a foreign state. Appellants= motions for new trial were overruled by operation of law.

Discussion

In two points of error, appellants argue the trial court erred in rendering judgments for the State and in overruling their motions for new trial because appellants= performance on the bonds was rendered impossible as a result of Article 102 of the Honduran Constitution, which prohibits the extradition of Honduran citizens. Appellants allege Alvarez traveled to Honduras after she was released from custody on the bonds, she remains in Honduras, and appellants are unable to extradite her from Honduras due to Article 102 of the Honduran Constitution, rendering performance of the bonds impossible. Appellants contend their inability to have Alvarez extradited exonerates them from liability because it is an Auncontrollable circumstance@ contemplated by Texas Code of Criminal Procedure article 22.13(a)(3). Tex. Code Crim. Proc. Ann. art. 22.13(a)(3) (Vernon Supp. 2005).[1] The State argues the judgments of forfeiture should be affirmed because appellants presented no evidence below in support of their affirmative defense of Auncontrollable circumstance.@

Although criminal in nature, forfeiture proceedings are governed by the rules of civil procedure. Tex. Code Crim. Proc. Ann. art. 22.10 (Vernon Supp. 2005); Tinker v. State, 561 S.W.2d 200, 201 (Tex. Crim. App. [Panel Op.] 1978). We review a judgment of forfeiture for an abuse of discretion. See Williamson v. State, 68 Tex. Crim. 53, 55, 150 S.W. 892, 893 (1912) (holding trial court did not abuse its discretion in rendering judgment for full amount of bond). Likewise, we review a trial court=s ruling on a motion for new trial under an abuse of discretion standard. State v. Vega, 927 S.W.2d 81, 83 (Tex. App.CHouston [1st Dist.] 1996, writ dism=d w.o.j.).

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. Tocher v. State, 517 S.W.2d 299, 301 (Tex. Crim. App. 1975); Spradlin v. State, 100 S.W.3d 372, 377B78 (Tex. App.CHouston [1st Dist.] 2002, no pet.); see Tex. Code Crim. Proc. Ann. art. 22.02 (Vernon 1989) (setting forth manner for taking the forfeiture of an appearance bond). A judgment nisi is prima facie proof that the statutory requirements for taking a forfeiture have been satisfied. Alvarez v. State, 861 S.W.2d 878, 881 (Tex. Crim. App. 1992). Once a prima facie case has been established, the defendant must then prove one of the statutory requirements of the judgment nisi has not been satisfied. Alvarez, 861 S.W.2d at 881; Spradlin, 100 S.W.3d at 377B78.

Here, the record before the trial court included both the judgments nisi and the appearance bonds. In their answers, appellants generally alleged article 22.13 as an affirmative defense, but the appellate record does not show appellants offered any evidence in support of their affirmative defense of Auncontrollable circumstance@ in the trial court. There is no record of any hearings held on the judgments of forfeiture or on their motions for new trial, and appellants did not attach any evidence to their unsworn motions for new trial. Appellants alleged in their motions for new trial that Alvarez, a Honduran citizen, fled from the United States to Honduras and failed to appear before the trial court on September 10, 2002. Appellants further alleged they know the exact location of Alvarez in Honduras, diligently have sought her return, and have the means to transport her from Honduras to the United States, but Article 102 of the Honduran Constitution prevents them from producing Alvarez because it prohibits the extradition of Hondurans. Additionally, appellants alleged Alvarez=s failure to appear did not result from any fault of the appellants because Alvarez=s travel was not restricted by the trial court; thus, appellants claimed they had no obligation to prevent Alvarez=s travel to Honduras.

Here, the two final judgments provide, A[T]he Court, after considering the pleadings and evidence herein, including the bail bond and the Judgement of Forfeiture on file in this cause, finds: that no sufficient cause was shown for [Alvarez=s] failure to appear on SEPTEMBER 10, 2002, to answer the charge by indictment accusing [her] of a felony; and the Judgment of Forfeiture heretofore rendered against the Defendants should be made final.@ The only reference in the record to Alvarez being in Honduras is in appellants= motions for new trial, in which appellants alleged that Alvarez is in Honduras and unable to be extradited. These are conclusory and unsworn allegations, and the meager record simply does not support appellants= assertions concerning Alvarez=s location. There is no record of the hearings held on the final judgments of forfeiture; no hearings were conducted on appellant=s unsworn motions for new trial; and no evidence was attached to appellants= motions for new trial.

Appellants= failure to present any evidence in support of their affirmative defense of Auncontrollable circumstance@ is fatal to their appeal. The appellate record does not contain any evidence substantiating appellants= affirmative defense of Auncontrollable circumstance@ based on the appellants= inability to extradite Alvarez from Honduras. The only evidence before the trial court showed the State was entitled to judgment against appellants on the bonds. See Tex. Code Crim. Proc. Ann. art. 22.14 (Vernon 1989) (AWhen, upon a trial of the issues presented, no sufficient cause is shown for the failure of the principal to appear, the judgment shall be made final against him and his sureties . . . .@). We hold the trial court did not abuse its discretion in rendering judgments of forfeiture in favor of the State and in overruling appellants= motions for new trial.

Accordingly, we overrule appellants= two points of error.

Conclusion

We affirm the judgments of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed June 2, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Article 22.13 provides in part, AThe following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken: . . . some uncontrollable circumstance which prevented [the defendant=s] appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part.@ Tex. Code Crim. Proc. Ann. art. 22.13(a)(3).