Warren Alkek, Individually and d/b/a A&A Bail Bonds v. The State of Texas--Appeal from 377th District Court of Victoria County

 NUMBERS 13-05-00209-CV

13-05-00210-CV

13-05-00211-CV

13-05-00212-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

WARREN ALKEK, INDIVIDUALLY

AND D/B/A A&A BAIL BONDS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 377th District Court of Victoria County, Texas.

 MEMORANDUM OPINION

 Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

In each of these cases,[1] appellant, Warren Alkek, individually and d/b/a A&A Bail Bonds, appeals from a judgment forfeiting a bail bond. In each case, by a single issue, appellant contends the trial court abused its discretion in refusing to grant a sufficient remittitur of the forfeiture. We affirm in all four cases.

A. Applicable Law

Under article 22.17 of the Texas Code of Criminal Procedure, after a final judgment is entered in a bond forfeiture proceeding, the surety on the bond may file a special bill of review with the court requesting, on equitable grounds, that the final judgment be reformed and that all or part of the bond amount be remitted to the surety, less (1) the costs of court, (2) any reasonable costs to the county for the return of the principal, and (3) the interest accrued on the bond amount from the date of forfeiture. Tex. Code Crim. Proc. Ann. art. 22.17(a) (Vernon 1989). Article 22.17 states that the decision to grant or deny the bill, in whole or in part, is entirely within the discretion of the trial court. Id.; see Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993); Makeig v. State, 830 S.W.2d 956 (Tex. Crim. App. 1992) (adopting the decision and reasoning of Makeig v. State, 802 S.W.2d 59 (Tex. App.BAmarillo 1990)). However, the statute provides no guidelines for the exercise of the trial court=s discretion. Lyles, 850 S.W.2d at 502 (citing Makeig, 802 S.W.2d at 62).

AIn determining whether the trial court abused its discretion, we must determine if the judge acted without reference to any guiding rules and principles, or, in other words, whether the court acted arbitrarily or unreasonably.@ Makeig, 802 S.W.2d at 62; Lyles, 850 S.W.2d at 502. An abuse of discretion may exist on the part of the trial court Awhen there is a showing of sufficient cause for the accused=s failure to comply.@ Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62. Sufficient cause usually requires Aa showing that the party did not break his recognizance intentionally, with the design of evading justice, or without a sufficient cause or reasonable excuse, such as unavoidable accident or inevitable necessity preventing his appearance.@ Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62-63. AMere subsequent appearance by the accused is not sufficient cause for complete remission of the forfeiture.@ Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62.

In addition to considering the cause of the principal=s failure to comply, an appellate court should take into account (1) any extreme hardship resulting to the surety, balanced by whether compensation was received by the surety for taking the risk, (2) whether the surety incurred any costs in attempting to locate the principal, and (3) whether the principal was apprehended through the efforts of the surety. Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62-63. While the purpose of the law is not to act as a revenue device, see Gramercy Ins. Co. v. State, 834 S.W.2d 379, 381-82 (Tex. App.BSan Antonio 1991, pet. ref=d), nor to punish the surety for a principal=s noncompliance, the law does contemplate that noncompliance will result in forfeiture of the bond amount. Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 63.

B. Discussion

1. Cause Number 13-05-209-CV

In cause number 13-05-209-CV, appellant was the surety on a $15,000 bail bond for principal Joe Neal Brown, who was charged with a felony DWI. Brown failed to appear in court on May 18, 2001, and the trial court issued a Judgment Nisi on May 21, 2001. The trial court=s final order of February 28, 2005, granted appellant a remittitur of $6,000, approximately forty percent of the original bond.[2]

At the hearing on the special bill of review, Brown testified that he failed to appear at his May 18th court date because of a miscommunication with his court-appointed attorney. Brown explained that his attorney sent him a letter instructing him to appear in court sometime in December 2000 or January 2001, but when his father took him to the courthouse it was closed for a holiday. Brown called his attorney, who told him that he would get back to him with a later court date. Brown then called A&A Bail Bonds and told them what happened. When Brown subsequently appeared in court on July 14, 2001, he was arrested for the earlier failure to appear.

Although Brown=s failure to appear does not appear to have been willful or with the intention of evading justice, miscommunication with an attorney does not constitute an Aunavoidable accident or inevitable necessity.@ See Lyles, 850 S.W.2d at 502; Makeig, 802 S.W.2d at 62-63. Furthermore, although appellant asserts he was responsible for Brown=s later appearance in court, Brown testified that although A&A told him he should appear at his next scheduled court date on July 14, 2001, they never told Brown to turn himself in any earlier, did not assist him in determining when he should have appeared in court, and put forth no additional efforts or expenses to secure his appearance in court. Brown testified that it was his own choice to show up in court on July 14th, that he went of his own free will, and that he was not accompanied by a bondsman. Given these considerations, we cannot say that the trial court abused its discretion. Appellant=s sole issue in cause number 13-05-209-CV is overruled.

2. Cause Number 13-05-210-CV

In cause number 13-05-210-CV, appellant was the surety on a $5,000 bail bond for principal Myrtle Bryant, who was charged with child abandonment. Bryant failed to appear in court on April 17, 2001, and the trial court issued a Judgment Nisi on April 23, 2001. The trial court=s final order of February 28, 2005, granted appellant a remittitur of $2,000, approximately forty percent of the original bond.

At the hearing, Carmen Davila Salazar, an agent of A&A, testified that upon Bryant=s failure to appear, A&A hired bounty hunter Lewis Edwards, who located Bryant in Nueces County, Texas, and turned her in to local authorities on August 7, 2001. A&A paid the Victoria County Sheriff=s Office the sum of $114.22 to transport Bryant to Victoria County. Salazar testified that Bryant later told her that she did not appear in court because either she or one of her children had gotten sick. However, Salazar admitted she had no actual proof that any medical attention was sought.

Although appellant did incur additional expenses in the re-apprehension of Bryant, we note the remittitur ordered by the trial court is more than fifteen times the amount expended. Without additional evidence of a sufficient reason for Bryant=s failure to appear, we cannot say that the trial court abused its discretion. Appellant=s sole issue in cause number 13-05-210-CV is overruled.

3. Cause Number 13-05-211-CV

In cause number 13-05-211-CV, appellant was a surety on a $25,000 bail bond for principal Darwin Jamal Powell, who was charged with aggravated assault. Powell failed to appear in court on May 29, 2001, and the trial court issued a Judgment Nisi on May 31, 2001. The trial court=s final order of February 28, 2005, granted appellant a remittitur of $12,500, approximately fifty percent of the original bond.

At the hearing, Salazar testified that after Powell failed to appear in court, A&A again hired bounty hunter Lewis Edward. Powell was located in Bexar County, Texas, where Powell turned himself in to the Bexar County Sheriff=s Office on June 17, 2001. Salazar testified that they were in communication with Powell and told him to turn himself in, and that because Powell turned himself in, A&A incurred no additional expenses in his reapprehension. Without additional evidence of a sufficient reason for Powell=s failure to appear, we cannot say that the trial court abused its discretion. Appellant=s sole issue in cause number 13-05-211-CV is overruled.

4. Cause Number 13-05-212-CV

In cause number 13-05-212-CV, appellant was the surety on a $50,000 bail bond for principal Juana Gonzalez, who was charged with aggravated robbery. Gonzalez failed to appear in court on October 25, 2000, and the trial court issued a Judgment Nisi on October 27, 2000. The trial court=s final order of February 28, 2005,[3] granted appellant a remittitur of $25,000, approximately fifty percent of the original bond.

At the hearing, Homer Soliz, an agent of A&A testified that after Gonzalez failed to appear in court, he sat on a couple of stake-outs looking for her. At one point, he located Gonzalez, but the sheriff=s department did not have a unit available to pick her up, and the city police did not show a warrant for her arrest. He testified he did not know why Gonzalez had failed to appear in court. On December 14, 2001, Gonzalez was incarcerated in the county jail of Chesterfield County, Virginia. On June 18, 2002, Gonzalez was transferred from Chesterfield County, Virginia to Victoria County, Texas. A&A paid the Victoria County Sheriff=s Office the sum of $1,357.12 to transport appellant from Virginia to Texas.

The record does not show sufficient cause for Gonzalez=s failure to appear in court. On the contrary, the delay of approximately eighteen months between Gonzalez=s failure to appear and her reapprehension in the State of Virginia indicates a wilfulness on the part of Gonzalez to break bond. Further, although appellant did incur expenses in securing Gonzalez=s re-apprehension, the remittitur granted by the trial court is more than fifteen times the amount expended. Accordingly, we cannot say that the trial court abused its discretion. Appellant=s sole issue in cause number 13-05-212-CV is overruled.

The judgments of the trial court in cause numbers 13-05-209-CV, 13-05-210-CV, 13-05-211-CV, and 13-05-212-CV are affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed

this the 22nd day of June, 2006.

[1] Although appellant is the same in each case, the principals, bond amounts, and amounts of remittitur differ. Nevertheless, the issue is the same in each appeal. Furthermore, the trial court rendered final default judgments in all four cases for the full amount of the forfeited bonds on August 2, 2002, and on April 4, 2003, under article 22.17, appellant filed requests in all four cases for a ASpecial Bill of Review.@ See Tex. Code Crim. Proc. Ann. art. 22.17 (Vernon 1989). The requests were heard together on April 5, 2004, by the Honorable Joseph P. Kelly in the 24th District Court of Victoria County, Texas. On June 21, 2004, Judge Kelly issued one letter to appellant advising him of his rulings in all four cases, and all four final orders were issued on February 28, 2005. Therefore, we address all four cases in one opinion.

[2] In all four cases, the order of remittitur required appellant to pay court costs, prejudgment interest of ten percent from the date of forfeiture to the date of final judgment (August 2, 2002), post-judgment interest of ten percent from the date of final judgment (August 2, 2002) to July 15, 2003, and post-judgment interest of five percent from July 16, 2003 until February 28, 2005, the date of the order granting the special bill of review.

[3] The final order in cause number 13-05-212-CV was actually dated February 28, 2004. However, on May 26, 2005, the trial court issued an order nunc pro tunc correcting the effective date of the final order to February 28, 2005.