Felix Michael Kubosh v. The State of Texas--Appeal from 209th District Court of Harris County

Opinion issued December 23, 2004

In The

Court of Appeals

For The

First District of Texas

NOS. 01-04-00552-CV 01-04-00553-CV

__________

FELIX MICHAEL KUBOSH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause Nos. 935,967-A and 935,692-A

MEMORANDUM OPINION

In these bond forfeiture proceedings, appellant, Felix Michael Kubosh (Kubosh), a surety on two bail bonds executed for Hopeton Albert Shaw (Shaw), challenges the trial court s judgments nisi in favor of the State. // In two issues, Kubosh contends that the trial court erred in granting judgments in favor of the State for the full amounts of the bonds because: (1) Kubosh complied with the statutory requirements of article 17.16 of the Code of Criminal Procedure // to show that he was relieved of his obligation on the bonds and (2) public policy dicatate [sic] that the State should not be allowed to benefit from their [sic] inaction.

We affirm.

Factual and Procedural Background

In 2003, a grand jury issued two bills of indictment, accusing Shaw of the felony offenses of burglary of a habitation and aggravated robbery. To secure his release from custody pending his trial, Harrison executed two bail bonds the first in the amount of $10,000 (burglary of habitation) and the second in the amount of $30,000 (aggravated robbery) with Kubosh, who is a licensed bail bondsman, as a surety on each bond. On April 24, 2003, Shaw failed to appear in the trial court as required, and the trial court then signed judgments nisi of the full amounts of the bonds in each case.

In January 2004, at the bench trial in these cases, Kubosh testified that, before Shaw was scheduled to appear in the trial court, Shaw s mother informed Kubosh that she wanted to surrender her son s bonds because Shaw was in jail on new, unrelated charges and she didn t believe he was going to go to court. Shaw s mother also signed affidavits of surrender, which read in pertinent part as follows: I am [Shaw s] mother. My son has been arrested by South Park Police for a misdemeanor theft charge. He is currently in their custody. I wish to surrender his bond.

Two days before Shaw s scheduled court appearance, Kubosh submitted the affidavits and surrendered the bonds to the trial court, which found that legally sufficient cause existed for Shaw s sureties to surrender him and directed the district clerk to issue an alias capias for Shaw s arrest in each case. Kubosh then telephoned the Harris County Sheriff s Office and asked an administrative assistant to inform a Deputy Shepherd to place a hold on Shaw because warrants had been issued for his arrest. Kubosh testified that, so as to make sure [Shaw] wasn t released, he also telephoned the jail and informed a deputy sheriff, whom he identified as Sergeant King, that the trial court had signed warrants for Shaw s arrest.

At the conclusion of the trial, the trial court found in favor of the State and signed final judgments of forfeiture against Kubosh, Shaw, and Shaw s mother, jointly and severally, on the full amounts of the bonds.

Discharge of Liability on Bonds

In his first issue, Kubosh argues that the trial court erred in granting the final judgments against him in these cases because the evidence presented at trial established that Kubosh complied with the statutory requirements for discharging his liability on the bonds. We construe this issue as a challenge to the legal sufficiency of the evidence presented to the trial court at the bench trial, and we will reverse the trial court s judgments if the record indicates that Kubosh conclusively established all vital facts in support of his contention. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). //

The Code of Criminal Procedure defines bail as the security given by the accused that he will appear and answer before the proper court the accusation brought against him. Tex. Code Crim. Proc. Ann. art. 17.01 (Vernon 1977). A bail bond is a written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation . . . . Id. art. 17.02 (Vernon 1977). Such a bond is valid and binding upon the defendant and his sureties. Id. art. 17.09 (Vernon 1977). The elements of the State s case in a bond forfeiture proceeding consist of the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. McCluskey v. State, 64 S.W.3d 621, 623 (Tex. App. Houston [1st Dist.] 2001, no pet.). Once these are established, the defendant or his sureties must then prove that one of the elements has not been complied with. Id.

Kubosh does not challenge the validity of the bonds or the fact that Shaw did not appear before the trial court as scheduled. Rather, he argues that, prior to Shaw s scheduled appearance, Kubosh complied with the statutory requirements for discharging his liability on the bonds. With regard to a bondman s ability to discharge his liability on a bond before an accused s scheduled court appearance, the Code of Criminal Procedure provides as follows:

(a)A surety may before forfeiture relieve himself of his undertaking by:

(1)surrendering the accused into the custody of the sheriff of the county where the prosecution is pending; or

(2)delivering to the sheriff of the county where the prosecution is pending an affidavit stating that the accused is incarcerated in federal custody, in the custody of any state, or in any county of this state.

(b)For the purposes of Subsection (a)(2) of this article, the bond is discharged and the surety is absolved of liability on the bond on the sheriff s verification of the incarceration of the accused.

Tex. Code Crim. Proc. Ann. art. 17.16 (Vernon Supp. 2004-2005) (emphasis added).

Here, after the State proved that Kubosh was a surety on the bonds executed by Shaw and that Shaw had failed to appear in the trial court as scheduled, it was Kubosh s burden to prove that he had discharged his liability on the bonds by complying with the requirements of article 17.16. Because Kubosh did not physically surrender Shaw to the Harris County Sheriff, Kubosh was required to present evidence establishing that (1) he had delivered an affidavit to the Harris County Sheriff stating that Shaw was in custody and (2) the Harris County Sheriff had verified Shaw s incarceration. However, at trial, Kubosh presented no evidence that he ever delivered such an affidavit to the Harris County Sheriff or that he ever obtained any official verification by the Harris County Sheriff, or from any other authorized law enforcement representative, that Shaw had been incarcerated, as required by article 17.16(b). Accordingly, we hold that the record indicates that Kubosh did not conclusively establish that he complied with all of the requirements of article 17.16 to discharge his liability on the bonds. See Francis, 46 S.W.3d at 241.

We overrule Kubosh s first issue.

Public Policy

In his second issue, appellant argues that this Court should reverse the trial court s judgments on the basis of public policy because Public Policy dictates that when a jail or a Police officer receives a call stating that a person in their jail has a Felony Warrant, then the jail or local Police officer should at least search for the warrant on the computer. As part of his argument under this issue, Kubosh also reiterates his contention that he complied with the requirements of article 17.16.

We note that, as an intermediate appellate court, we are constrained to apply the provisions of the statutes enacted by the legislature and the holdings of our superior courts, when applicable, regardless of public policy concerns. See Tex. Dep t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002); Lubbock County v. Trammel s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002).

Accordingly, we overrule Kubosh s second issue.

Conclusion

We affirm the judgments of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.