Apodaca v. State

493 S.W.2d 859 (1973)

Victor APODACA, Appellant, v. The STATE of Texas, Appellee.

No. 46754.

Court of Criminal Appeals of Texas.

May 1, 1973.

Joseph (Sib) Abraham, Jr. and Anthony C. Aguilar, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., and Gary B. Weiser, Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

JACKSON, Commissioner.

This is an appeal by a surety on a bail bond from a judgment forfeiting the bond.

Appellant made bond for Robert Charles Denton for $750 to insure his presence at the 34th District Court on a worthless check charge, a felony. The court called his case on September 28, 1972. He failed to appear, and nisi judgment was entered against Denton and appellant. Appellant was duly cited to appear on October 27, 1972, to show *860 cause why the nisi judgment should not be made final. On December 20, 1972, the court made the forfeiture final by entering judgment against appellant for $750 and costs.

Appellant's sole contention on this appeal is that because he filed an affidavit for the surrender of the principal, Denton, and obtained a warrant for his arrest, he was thereby relieved from liability on the bond. He did not surrender Denton as is provided for in Articles 17.17 and 17.18, Vernon's Ann.C.C.P. Denton was never arrested on this warrant issued under Article 17.19, V. A.C.C.P., in response to his affidavit.

The filing of the affidavit and issuance of the warrant did not discharge the surety until the principal was in custody. Wells v. State, 100 Tex.Cr.R. 73, 271 S.W. 918; Thompson v. State, 169 Tex.Cr.R. 495, 335 S.W.2d 226.

The judgment is affirmed.

Opinion approved by the Court.