Lazaro Baeza d/b/a B & M Bonding v. The State of Texas--Appeal from 83rd District Court of Pecos County

Becker v. State COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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LAZARO BAEZA d/b/a B & M BONDING,

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No. 08-02-00314-CV)

Appellant,

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Appeal from)

v.

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83rd District Court)

THE STATE OF TEXAS,

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of Pecos County, Texas)

Appellee.

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(TC# 5852)
MEMORANDUM OPINION

Lazaro Baeza d/b/a B & M Bonding (Baeza) appeals from a final judgment entered on a bond forfeiture. We affirm.

FACTUAL SUMMARY

Fabian Douglas Castaneda, as principal, and Lazaro Baeza d/b/a B & M Bonding, acting as a surety, entered into a $50,000 bail bond payable to the State of Texas. Castaneda, who was charged by indictment with murder, failed to appear in court on July 10, 2000. Consequently, the trial court entered a judgment nisi against the principal and surety. (1) At the final hearing, the State introduced into evidence the bond and the judgment nisi. At the conclusion of the hearing, the trial court entered a final judgment against Castaneda and Baeza.

 

Request for Findings of Fact and Conclusions of Law

In Point of Error No. One, Baeza contends that the trial court erred in failing to make findings of fact and conclusions of law. Baeza made a timely request and reminder, but the trial court did not enter the written findings and conclusions. On June 30, 2003, this Court entered an order abating the appeal and directing the trial court to enter written findings of fact and conclusions of law. The trial court has complied with our order and the appeal has been reinstated for consideration of the remaining issues. Baeza has not filed an amended brief seeking to challenge any of the trial court's findings of fact or conclusions of law. Point of Error No. One is overruled as moot.

Judicial Notice of Failure to Appear

In Point of Error No. Two, Baeza asserts that the trial court erred in taking judicial notice that Castaneda's name was called three times at the courthouse door and he failed to appear because taking judicial notice prevented Baeza from attempting to rebut these facts. The State met its initial burden of proof by introducing both the bond and judgment nisi into evidence without any objection from Appellant. The State asked the trial court to take judicial notice of its file and that Castaneda's name was called three times at the courthouse door and he did not appear. The trial court took judicial notice as requested. Baeza raised no objection whatsoever to the trial court taking judicial notice of these matters.

The proceedings relating to bond forfeitures are entirely statutory. International Fidelity Insurance Company v. State, 65 S.W.3d 724, 726 (Tex.App.--El Paso 2001, no pet.). The State must establish four essential facts, as provided by statute, to be entitled to a bond forfeiture: (1) a valid bond executed by the surety; (2) failure of a defendant bound by bail to appear in a court in which his case is pending when his personal appearance is required under the Code; (3) the name of the defendant shall have been called distinctly at the courthouse door; and (4) no valid reason for the principal not appearing. Id. At the final hearing, the essential elements of the State's cause of action in a bond forfeiture proceeding are the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. Id. A judgment nisi is prima facie proof that the statutory requirements have been satisfied and the burden is on the defendant to affirmatively show otherwise. Id. Once a prima facie case has been established, the defendant must then prove that one of the statutory requirements of the judgment nisi has not been satisfied. Id. at 726-27.

It is well established that to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling. Tex.R.App.P. 33.1(a)(1). Failure to do so results in waiver of the complaint. The objection requirement applies to complaints about a trial judge taking judicial notice. Tex.R.Evid. 201(e)("A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. "). See also Texas Real Estate Commission v. Nagle, 767 S.W.2d 691, 692-93 (Tex.1989)(holding that party preserved complaint about trial court taking judicial notice of its prior proceedings by making timely objection). Because Baeza never objected to the trial court taking judicial notice of its file and the prior proceedings, he has failed to preserve his contention for review. Goad v. Goad, 768 S.W.2d 356, 359 (Tex.App.--Texarkana 1989, writ denied)(party waived complaint about taking of judicial notice of prior proceedings by failing to request opportunity to be heard under Tex.R.Evid. 201(e) and by failing to object). Point of Error No. Two is overruled. Having overruled both points of error, the judgment of the trial court is affirmed.

 

April 15, 2004

ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

1. The trial court entered judgment against a second surety, Marcos Martinez d/b/a Liberty Bonding. Martinez's appeal has been dismissed by agreement of the parties. Therefore, our discussion of the facts does not include Martinez.