International Fidelity Ins. Co, Agent Judy Grandmaison-Warren, Surety v. The State of Texas--Appeal from 262nd District Court of Harris County
Annotate this Case
Download PDF
Opinion issued February 17, 2011
In The
Court of Appeals
For The
First District of Texas
——————————
NO. 01-09-00441-CR
———————————
INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 0895218-A
MEMORANDUM OPINION ON REHEARING
We deny appellant’s motion for rehearing. However, we withdraw our
opinion and judgment of January 13, 2011 and issue this opinion and judgment in
their place.
International Fidelity Insurance Company appeals the trial court’s judgment
of forfeiture on a criminal bail bond. After the State instituted forfeiture
proceedings, International Fidelity asserted the statute of limitations as an
affirmative defense. Following a bench trial, the trial court rendered judgment in
favor of the State for the amount of the bond, $200,000. On appeal, International
Fidelity asserts that the trial court’s judgment of forfeiture in this case is void due
to a prior forfeiture and that the evidence is factually insufficient to support the
trial court’s judgment.
We conclude that the record does not show a prior
forfeiture and the evidence is factually sufficient to support the trial court’s
judgment. We affirm.
Background
In December 2001, International Fidelity bonded Manuel Fantauzzi out of
jail. On December 28, 2001, International Fidelity filed an affidavit to surrender
Fantauzzi and relieve itself of liability on the bond. The trial court granted the
request and issued an alias capias for Fantauzzi’s arrest.
Fantauzzi was required to appear at a hearing on January 10, 2002. It is
disputed whether Fantauzzi appeared at the hearing. On that same day, the trial
court issued an alias capias for Fantauzzi’s arrest. The case remained dormant
until the State reset a hearing for July 24, 2007, after noticing that records showed
Fantauzzi was out on bond and the case was still open. When Fantauzzi failed to
2
appear at the July 24, 2007 hearing, the trial court issued a judgment nisi declaring
the bond forfeited.
As required by article 22.03(a) of the Texas Code of Criminal Procedure, the
bonding company, International Fidelity, was served with citation and given an
opportunity to show cause why the judgment of forfeiture should not be made
final. A bench trial was held on the forfeiture. International Fidelity asserted an
affirmative defense based on the four-year statute of limitations applicable to
forfeiture proceedings.
After hearing the evidence, the trial court rendered
judgment against International Fidelity for the amount of the bond.
Bond Forfeiture
International Fidelity asserts that the trial court’s 2007 bond forfeiture was
void because there was a prior forfeiture and there cannot be two forfeitures on the
same bond. International Fidelity also contends that the trial court’s determination
that International Fidelity did not prove Fantauzzi failed to appear on January 10,
2002 was ―against the great weight and preponderance of the evidence‖ and that
the four-year limitations period began to run when Fantauzzi failed to appear at
that hearing.
A.
Standard of Review
Although bond forfeiture cases are criminal matters, bond forfeiture
proceedings are governed by the rules of civil procedure. TEX. CODE CRIM. PROC.
3
ANN. art. 22.10 (West 2009); Ranger Ins. Co. v. State, 312 S.W.3d 266, 268 (Tex.
App.—Dallas 2010, pet ref’d).
Likewise, in an appeal of a bond forfeiture
proceeding, ―the proceeding shall be regulated by the same rules that govern civil
actions where an appeal is taken . . . .‖ TEX. CODE CRIM. PROC. ANN. art. 44.44
(West 2006). Therefore, we apply civil case law concerning the standard of
review.
See Alvarez v. State, 861 S.W.2d 878, 881 (Tex. Crim. App. 1992)
(applying summary judgment standard of review to appeal of summary judgment
in bond forfeiture case); see also Int’l Fid. Ins. Co. v. State, No. 03-09-00539-CR,
2010 WL 4366910, at *2 n.3 (Tex. App.—Austin Nov. 3, 2010, no pet.) (mem. op.,
not designated for publication) (applying civil legal and factual sufficiency
standards of review in bond forfeiture case).
The trial court did not make separate findings of fact or conclusions of law.
The judgment also does not contain any fact findings. If a trial court does not
make separate findings of fact or conclusions of law, all facts necessary to support
the trial court’s judgment are implied. Gainous v. Gainous, 219 S.W.3d 97, 103
(Tex. App.—Houston [1st Dist.] 2006, pet. denied). These implied fact findings
may be challenged for factual sufficiency of the evidence supporting them. Id.
International Fidelity asserts that the trial court’s decision that the statute of
limitations had not expired (and its implied finding that Fantauzzi did not fail to
appear on January 10, 2002) is ―against the great weight and preponderance of the
4
evidence,‖ thus raising a factual sufficiency challenge. When a party attacks the
factual sufficiency of an adverse finding on an issue on which it has the burden of
proof, it must demonstrate on appeal that the adverse finding is against the great
weight and preponderance of the evidence. Urista v. Bed, Bath, & Beyond, Inc.,
245 S.W.3d 591, 601 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In reviewing
a point of error asserting that a finding is ―against the great weight and
preponderance‖ of the evidence, we must consider and weigh all of the evidence.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must set aside a
verdict only if the evidence is so weak or if the finding is so against the great
weight and preponderance of the evidence that it is clearly wrong and unjust.
Urista, 245 S.W.3d at 601. ―In an appeal from a bench trial, we may not invade
the fact-finding role of the trial court, which alone determines the credibility of the
witnesses, the weight to give their testimony, and whether to accept or reject all or
any part of that testimony.‖ Whaley v. Cent. Church of Christ, 227 S.W.3d 228,
231 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (stating that, in factual
sufficiency review, court of appeals may not substitute its judgment for that of
factfinder, which is sole judge of credibility of witnesses and weight to be given to
testimony).
5
B.
Law Regarding Bond Forfeitures
Chapter 22 of the Texas Code of Criminal Procedure governs bond forfeiture
proceedings in the trial court. TEX. CODE CRIM. PROC. ANN. arts. 22.01–.18 (West
2009). A bond may be forfeited when a defendant has posted bond and fails to
appear in court as required. Id. art. 22.01. Article 22.02 provides the procedure for
forfeiting bonds:
The name of the defendant shall be called distinctly at the courthouse
door, and if the defendant does not appear within a reasonable time
after such call is made, judgment shall be entered that the State of
Texas recover of the defendant the amount of money in which he is
bound, and of his sureties, if any, the amount of money in which they
are respectively bound, which judgment shall state that the same will
be made final, unless good cause be shown why the defendant did not
appear.
Id. art. 22.02; see Alvarez v. State, 861 S.W.2d at 881. This judgment is called a
―judgment nisi.‖ See Alvarez, 861 S.W.2d at 880–81. After entry of a judgment
nisi, the sureties and the defendant are issued citation to appear in the trial court
and show cause why the judgment of forfeiture should not be made final. TEX.
CODE CRIM. PROC. ANN. art. 22.03(a). Article 22.18 provides that the State must
bring an action to forfeit a bond not later than the fourth anniversary of the date the
defendant fails to appear. Id. art. 22.18.
6
C.
Did International Fidelity prove that Fantauzzi failed to appear at the
January 10, 2002 hearing?
International Fidelity asserts that there cannot be two forfeitures on the same
bond and that Fantauzzi forfeited his bond by failing to appear on January 10,
2002. International Fidelity also contends that the State’s action to forfeit the bond
was untimely because limitations began to run when Fantauzzi failed to appear at
that time. The State does not dispute that there may not be two forfeitures on the
same bond; instead it contends that the record does not show a prior forfeiture or
that Fantauzzi failed to appear on January 10, 2002.
The record does not show that there were two forfeitures on the bond. As
stated above, article 22.02 provides the procedure for forfeiting a bond. After the
defendant’s name is called and he fails to appear, the trial court enters a judgment
nisi. TEX. CODE CRIM. PROC. ANN. art. 22.02; Alvarez v. State, 861 S.W.2d at 880–
81. The record in this case does not establish by a preponderance of the evidence
that Fantauzzi’s name was called or that the trial court entered a judgment nisi
following the January 10, 2002 hearing. Therefore, the record does not establish a
prior forfeiture.
Furthermore, the evidence is factually sufficient to support the trial court’s
determination that International Fidelity failed to prove its limitations defense by a
preponderance of the evidence. See Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 220 (Tex. 2003); see also Burns v. Rochon, 190 S.W.3d 263, 271
7
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating party asserting limitations
defense has burden of proving that defense). When, as here, the trial court does
not make separate findings of fact, we imply all facts necessary to support the trial
court’s judgment. Gainous, 219 S.W.3d at 103. Thus, to support the trial court’s
judgment in this case, we imply a fact finding that Fantauzzi did not fail to appear
on January 10, 2002.
International Fidelity presented two witnesses concerning Fantauzzi’s failure
to appear, Fantauzzi’s counsel from the January 2002 hearing and the trial court
clerk. On the one hand, Fantauzzi’s counsel testified in his direct examination that
to the best of his recollection Fantauzzi was not present on January 10, 2002. On
the other hand, he testified on cross-examination that he could not recall whether
Fantauzzi was in court that day. There is no evidence in the record to show the
basis for his direct testimony that Fantauzzi did not appear.
The clerk testified that he had no recollection of the events on the day in
question, but he also opined that Fantauzzi must have failed to appear; otherwise,
the court would not have ordered an alias capias to be issued that same day based
on its regular practices. He admitted that it was possible that Fantauzzi appeared in
court despite the alias capias. He conceded that the court’s docket sheet does not
indicate whether Fantauzzi was or was not present on the day in question. He was
not asked to explain the absence of a judgment nisi, which should have been issued
8
if Fantauzzi did not appear. He testified that the court’s docket sheet for July 24,
2007 contained the court’s ―bond forfeiture stamp,‖ indicating Fantauzzi’s name
was called at the courthouse door but he did not appear, but did not testify
concerning the lack of the stamp on January 10, 2002.
The trial court judge was not only the factfinder but also the judge on the
day in question. He undoubtedly knows the procedures utilized by his court. In
announcing the court’s decision, he stated:
Through all the documents I have gone through in trying to find
out exactly what happened on January 10th, 2002, I don’t think
anybody really knows. I certainly don’t. I do know this, if that
Defendant had not been here and had not had some excuse that would
render his absence acceptable, I would have forfeited his bond that
day. I’ve looked at it from every angle. And I try to treat everybody
the same. And unless he was in custody somewhere else, in the
hospital, or there was some good reason for him not being here and it
was presented by his lawyer, I would have forfeited his bond. There
may have been some light that could have been shed on that by these
records. We don’t have them. So, I have to go by what I have seen,
and what I know about the practices of this Court.
So, I cannot find by a preponderance of the evidence that he
was not here. He may have been here for a while. He may have
gotten ill. He may have had to leave. He may have been in custody.
I do not know. But if he was not here and did not have a good, legal
reason for not being here, then I would have forfeited his bond.
Neither party objected then, nor do they object in their briefs, to the trial court
judge’s consideration of his knowledge ―about the practices‖ of the court.
Weighing all the evidence, we cannot say, even without the trial court
judge’s consideration of the court’s practices, that the trial court’s determination
9
that International Fidelity did not prove Fantauzzi’s failure to appear is against the
great weight and preponderance of the evidence. The trial court was free to resolve
any conflicts or inconsistencies and assign whatever weight it deemed appropriate
to the testimony.
See G`olden Eagle Archery, Inc., 116 S.W.3d at 761.
Accordingly, we hold that the evidence is factually sufficient to support the trial
court’s judgment.
In its motion for rehearing, International Fidelity asserts that the trial court
improperly considered matters outside the record. But International Fidelity did
not raise that objection in the trial court or in its brief. Rather, International
Fidelity first raised this issue in its motion for rehearing. Therefore, this issue is
waived. Coastal Liquids Transp. v. Harris County Appraisal Dist., 46 S.W.3d
880, 885 (Tex. 2001). We acknowledge that International Fidelity did mention the
trial court’s consideration of matters outside the record, but it only did so as part of
its issue challenging the sufficiency of the evidence; it did not raise a separate issue
asserting that the trial court erred by considering matters outside the record. We
have addressed the sufficiency of the evidence above.
In the end, it is clear that International Fidelity asserts that the trial court
―made a mistake‖ because either (1) Fantauzzi appeared on January 10, 2002 and
the trial court failed to arrest him as required by the alias capias issued on
December 28 or (2) Fantauzzi failed to appear and the court should have issued a
10
judgment nisi. Even setting aside the judge’s statement about the court’s practices,
the trial court could have found that International Fidelity failed to prove which of
the two events occurred by a preponderance of the evidence.
Finally, on rehearing, Interational Fidelity also argues that the forfeiture of
the bond punishes it when it did nothing wrong. A surety, however, assumes
certain risks when it issues a bond. And trial courts do make mistakes. The surety
here put on no evidence that it followed up after December 28, 2001 to ensure that
Fantauzzi was arrested. While it may not be required to do so, such action would
have caught the trial court’s purported mistake at a time it could have been
corrected and when the evidence concerning the January 10 hearing was still fresh.
We overrule International Fidelity’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
Do not publish. TEX. R. APP. P. 47.2(b)
11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.