RALPH BLACK, D/B/A ALLIED BONDING AGENCY, Appellant v. THE STATE OF TEXAS, Appellee

Reversed and Rendered and Opinion filed October 17, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00430-CV
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RALPH BLACK, D/B/A ALLIED BONDING AGENCY, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. MA87-41020-B
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O P I N I O N
Before Justices Howell, Thomas, and Ovard
Opinion By Justice Howell
        Ralph Black, doing business as Allied Bonding Agency (Surety), appeals a judgment forfeiting a $1,500 bail bond. The appearance bond was executed April 26, 1987 for a felony offense allegedly committed by Michael Leon Stevenson (Defendant). However, the information, the judgment nisi, and the final judgment recite that Defendant was charged only with a misdemeanor. Based on this material variance, Surety claims that the bond is defective and that the trial court, therefore, should not have forfeited the bond. We agree; accordingly, we reverse and render judgment that the State take nothing.
        The record in this case reflects that Defendant was arrested for assaulting a man with a blackjack in a Dallas area bar on April 25, 1987. Defendant's arrest warrant was not signed by the magistrate until April 29, 1987 but the felony bail bond was posted three days earlier on April 26, 1987. The affidavit supporting the bond indicates that the felony to be charged was aggravated assault. The information, which charged Stevenson only with misdemeanor assault, was not filed until April 30, 1987.
        Defendant failed to appear to defend against the misdemeanor offense charged in the information. The county criminal court, therefore, entered a judgment nisi forfeiting the bond on the misdemeanor offense. The judgment nisi provided that this "judgment will be made final unless good cause be shown why the defendant . . . did not appear." As no good cause was shown, the court entered final judgment against Defendant and Surety on February 2, 1988. The final judgment also states that Defendant failed to appear for the misdemeanor offense charged in the information.
        The essential elements of the State's cause of action in a bond forfeiture proceeding are the bond and the judgment nisi. Deckard v. State, 605 S.W.2d 918, 921 (Tex. Crim. App. [Panel Op.] 1980). A fatal variance occurs where the offense named in the bond differs from that specified in the indictment and the judgment nisi. See Shropshire v. State, 433 S.W.2d 898, 900 (Tex. Crim. App. 1968); Morgan v. State, 157 Tex. Crim. 117, 247 S.W.2d 94, 94 (1952); see also Hokr v. State, 545 S.W.2d 463, 467 (Tex. Crim. App. 1977) (Onion, P.J., concurring on reh'g).
        In Shropshire, the bond stated that the defendant had been charged with "theft by false pretext," while the indictment charged defendant with "forgery and unttering and passing as true a forged instrument." Shropshire, 433 S.W.2d at 899. The record indicated that the defendant had never been indicted for theft by false pretext. The Texas Court of Criminal Appeals reversed, holding that "the evidence is insufficient to show the bond forfeited was conditioned for [defendant]'s appearance to answer to the felony offense . . . charged in the case in which the bond was forfeited." Id. at 900.
        In the case at bar, the State has not favored us with a brief. After reviewing the record, however, we find no evidence that the offense charged in the information--misdemeanor assault--is the same offense as the felony offense for which Surety executed the appearance bond. FN:1 This defendant was never indicted for felony aggravated assault, just as the defendant in Shropshire was never indicted for felony theft. Consequently, the defendant's failure to appear to defend against the misdemeanor assault charge would have no bearing on the felony bond. As far as we can ascertain from this record, the felony bond is unrelated to the misdemeanor offense charged in the information.
        At the brief hearing on the bond forfeiture, FN:2 the State told the trial court that "obviously [Defendant] was arrested and charged by the police of a felony, posted a felony bond, and at some point after that a decision was made to prosecute it as a misdemeanor." These assertions, however, are not supported by the record. The felony bond was posted April 26, 1987. The arrest warrant, however, did not issue until April 29, 1987, and the information was not filed until April 30, 1987. The record does not reflect any arrest or detention of Defendant prior to the April 29, 1987 warrant.
        The bond did not describe the charged offense. However, the bond must state only that the charge is either a felony or a misdemeanor. TEX. CODE CRIM. PROC. ANN. art. 17.08 (Vernon 1977). Any further description of the offense in the bond is surplusage. International Fidelity Ins. Co. v. State, 489 S.W.2d 914, 914 (Tex. Crim. App. 1973). Therefore, we hold that the evidence is insufficient to show that that the felony bond forfeited by the trial court was conditioned on Defendant's appearance to answer to the misdemeanor offense charged in the information. The judgment forfeiting the felony bond cannot stand.
        Consequently, we reverse the trial court's judgment and render judgment that the appearance bond was defective because it contained a material, fatal variance from the offense charged in the information and the offense recited in the judgment nisi. The felony bond executed in this case is invalid, and, consequently, the State shall take nothing by
its forfeiture suit.
 
 
        REVERSED and RENDERED.
 
 
 
 
                                                          
                                                          CHARLES BEN HOWELL
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
880430F.UO5
 
FN:1 The arrest warrant presents the same description of the offense as the misdemeanor information. The bond, however, contains no factual recitation of the offense charged; thus, we cannot determine whether the assault described in the information was the same assault for which Surety executed the felony bond.
FN:2 The State also argued at the hearing that Surety had waived any complaint about defects in the bond because it failed to object to the defects at execution of the bond. Article 22.12 of the Texas Code of Criminal Procedure provides that the bond shall not be set aside for a defect of form, but instead shall be amended under the direction of the court. TEX. CODE CRIM. PROC. ANN. art. 22.12 (Vernon 1989) (emphasis added). The defect in this case, however, is not one of form; it is a material variance between the bond and the information and judgment nisi. See Shropshire, 433 S.W.2d at 900. Thus, the complaint is not waived.
File Date[10-16-89]
File Name[880430F]