Fears v. State

500 S.W.2d 815 (1973)

Thomas FEARS, with alias, as Principal and Odell Walker and Walter Cadd, as Sureties, Appellants, v. The STATE of Texas, Appellee.

No. 47486.

Court of Criminal Appeals of Texas.

November 7, 1973.

H. Thomas Hirsch and Robert Trenchard, Jr., Odessa, for appellants.

James A. Mashburn, Dist. Atty. and Jerry Buckner, Asst. Dist. Atty., Midland, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

This is an appeal from a final judgment upon forfeiture of an appearance bond. Appellants, Odell Walker and Walter Cadd are the sureties on the bond.

Appellants cite two grounds of error, only one of which we need consider. In their second ground of error appellants allege that the judgment nisi was not tendered into evidence by the State and the statement of facts does not reflect that the judgment nisi was accepted into evidence.

A review of the statement of facts reflects that the State did not introduce the judgment nisi in evidence. The record shows that appellants did offer in evidence the files in both the criminal case in which the bond was executed, being Cause No. 4453, and the civil case in which the final judgment of forfeiture was rendered, being Cause No. 25,760. The court reporter's notation reflects only that the file in No. 4453 was received in evidence, and this was marked as Defendants' Exhibit A.

Defendants' Exhibit A, as contained in the statement of facts, does not contain the judgment nisi, and it is not included in the statement of facts.

The court reporter's certificate states that "I further certify that this Statement of Facts truly and correctly reflects the exhibits offered by the respective parties, if any." The agreement of counsel for both parties in approving the statement of facts has this provision:

"We, the undersigned attorneys of record in the above captioned cause, do hereby agree that the foregoing typewritten pages constitute, a full, true and correct transcript, in question and answer form, of all the testimony and proceedings had, and all documentary evidence introduced during the trial of said cause, if any."

The trial court, in approving the statement of facts, certified it to be correct, and ordered it to be filed.

In reversing the judgment and remanding the cause, this Court, speaking through Judge Roberts, in Purkey v. State, 494 S.W.2d 541, said:

"The judgment nisi is a necessary and essential element of the State's cause of action in a bond forfeiture case, for without a judgment nisi there can be no final judgment. Morgan et al. v. State, 157 Tex.Cr.R. 117, 247 S.W.2d 94 (1952); Hester et al. v. State, 15 Tex. App. 418 (1884); McWhorter et al. v. State, 14 Tex.App. 239 (1883); Houston *816 v. State, 13 Tex.App. 560 (1883); Moreland v. State, 122 Tex.Cr.R. 452, 55 S.W.2d 1044, 1046 (1933); Nelson v. State, 44 Tex.Cr.R. 595, 73 S.W. 398 (1903); White et al. v. State, 101 Tex. Cr.R. 505, 276 S.W. 274 (1925). "The present cause is virtually identical to the situation faced by this Court in Morgan et al. v. State, supra. In both cases, the judgment nisi was never tendered into evidence though it was included in the record filed with this Court. That procedure is not proper."

The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.