Balboa v. State, 64239

• Decision Date: 25 February 1981
• Docket Number: No. 64239,64239
• Citation: 612 S.W.2d 553
• Parties: Ramon B. BALBOA, Principal & Joe Riojas, d/b/a Riojas Bail Bond, Surety, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 553

612 S.W.2d 553

Ramon B. BALBOA, Principal & Joe Riojas, d/b/a Riojas Bail Bond, Surety, Appellants, v. The STATE of Texas, Appellee.

No. 64239.

Court of Criminal Appeals of Texas, En Banc.

Feb. 25, 1981.

Antonio G. Cantu, San Antonio, for appellants.

Bill M. White, Dist. Atty. Robert DeLeon, Barry P. Hitchings and Douglas V. McNeel, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal by the surety and principal from a final judgment in the forfeiture of a bail bond.

The appellants contend that summary judgment should not have been granted because:

(1) the bond failed to designate the court in which the principal was to appear and is therefore not a valid and binding undertaking in law;

(2) the failure of the bond to designate the court in which the principal was to appear rendered the evidence insufficient to support the summary judgment;

(3) there was a disputed fact issue as to whether the appellant's name was called at the courthouse door as alleged in the judgment nisi; and

(4) "(T)here was a material and fatal variance between the judgment and the proof offered in support thereof in the particular court the principal was to appear."

The appellants assert that the trial court erred in granting the summary judgment because the bail bond was "incomplete and therefore not a valid and binding undertaking in law." It is argued that the bond does not conform to the requirements of Art. 17.08, V.A.C.C.P. in that it does not inform the principal in which court he is required to appear. Art. 17.08, V.A.C.C.P. provides:

"A bail bond shall be sufficient if it contain the following requisites:

"1 ....

"2. That the defendant and his sureties, if any, bind themselves that the defendant will appear before the proper court or magistrate to answer the accusations against him.

"5. That the bond state the time and place, when and where the accused binds himself to appear, and the court or magistrate before whom he is to appear. The bond shall also bind the defendant to appear before any court or magistrate before whom the cause may thereafter be pending at any time when, and place where, his presence may be required under this Code or by any court or magistrate."

The bond executed and presented by the principal and the sureties provides that the principal who was charged with a felony offense appear:

"instanter before ______, Justice of the Peace, during the present term of the aforesaid Justice Court, at the Courthouse in the City of San Antonio, Texas, in Justice Precinct No. ______, Place ______, Bexar County, Texas, there to remain in attendance from day to day, and term to term, until discharged by order of the Court, to answer the aforesaid accusation against him, and shall personally appear for any and all subsequent proceedings had relative to the above charges before the Grand Jury of said County, and before any Court or Courts of the State of Texas in which said subsequent proceedings may be pending ...."

The bond executed and presented by the appellants did not specify in which justice of the peace court the principal bound himself first to appear except that it was in "the Courthouse, in the City of San Antonio, Texas." The provision of the statute that the bond state "the court or magistrate" before whom the principal is to appear is for the benefit of the principal and surety; they have a right to insist that that provision of the statute be met if they do so at the time the bond is executed and presented for approval. However, if this right is not insisted upon at that time it is a right which may be waived and the principal and sureties may not be heard to complain of such an omission for the first time after the bond has been forfeited. See Smith v. State, 566 S.W.2d 638 (Tex.Cr.App.1978); Hodges v. State, 489 S.W.2d 916 (Tex.Cr.App.1973); Hall v. State, 485 S.W.2d 563 (Tex.Cr.App.1972); Bowen v. State, 413 S.W.2d 915 (Tex.Cr.App.1967), which held that although a bond is required by Art. 17.08, Sec. 4, V.A.C.C.P. to contain the mailing addresses of the principal and the sureties, sureties and principals who had signed bonds omitting their addresses would not be exonerated from their obligation under the bonds because of these omissions.

Since the principal and sureties in this case waived the right, which was for their benefit, to have "the bond state ... the court or magistrate" before whom the principal was first to appear when the bond was executed and presented for approval, the appellants will not be heard to complain after the bond has been forfeited.

Furthermore, in this instance the bond was not forfeited in a justice of the peace court. The bond was forfeited in a district court for the principal's failure to there appear to answer the charges against him, contrary to the obligation in the bond that the principal

"... personally appear for any and all subsequent proceedings had relative to the above charges before ... any Court or Courts of the State of Texas in which subsequent proceedings may be pending."

The appellants next argue that the failure of the bond to specify in which justice court the principal bound himself to appear "would seem to require some other summary judgment proof to establish that the Principal knew which Court to appear before." Since we hold that the appellants waived their right to have the bond state in which justice of the peace court the principal was first to appear this contention is likewise without merit. Moreover, as we have noted the bond was forfeited upon the appellant's failure to appear for "subsequent proceedings" against him in district court. The bond and the judgment nisi together are sufficient evidence to support the motion for summary judgment. Tocher v. State, 517 S.W.2d 299 (Tex.Cr.App.1975).

The appellants argue that a material fact issue of whether the principal's name was called at the courthouse door when the bond was forfeited was raised prior to rendering the final judgment, and that summary judgment was improperly granted.

In response to the citation commanding appellants to answer why the judgment nisi should not be made final the appellants filed an answer alleging in part that the principal's name was not called at the courthouse door as recited in the judgment nisi. The State filed a motion for summary judgment, to which were attached certified copies of the bond and the judgment nisi, and an affidavit of a deputy district clerk attesting to the genuineness of the copies. The appellants made no response to the State's motion.

Tex.R.Civ.P. 166-A(c), as amended in 1978, states that on appeal from summary judgment, "(i)ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." As appellants acknowledge, the "answer" required by the rule is a response to the motion for summary judgment, not to a general pleading. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Feller v. Southwestern Bell Tel. Co., 581 S.W.2d 775 (Tex.Civ.App. Houston (14th Dist.) 1979, no writ).

The appellants contend that substantial compliance with the rule was effected despite their failure to respond to the State's motion for summary judgment, because the State attached to its motion for summary judgment a copy of the appellants' answer to the citation. This same contention was made but rejected by this Court in the recent case of Duran v. State, 606 S.W.2d 921 (Tex.Cr.App.1980). As in this case, the defendant there argued that the factual issue of whether the principal's name had been called at the courthouse door was raised sufficiently to satisfy Rule 166-A(c) when the surety's answer to the citation was appended to the State's motion for summary judgment. The Court, relying on City of Houston, supra, and Feller, supra, found that the requirements of Rule 166-A(c) were not met; therefore, the issue could not be raised on appeal. The appellants here, having failed to respond to the State's motion for summary judgment within the meaning of Rule 166-A(c), are similarly prevented from raising the issue on appeal. Duran v. State, supra.

The appellants contend that variances between the bond, the scire facias, and the judgment nisi are fatal to the summary judgment. They rely on Smith v. State, 548 S.W.2d 407 (Tex.Cr.App.1977) and Bonds v. State, 162 Tex.Cr.R. 419, 286 S.W.2d 313 (1956).

In Smith v. State, supra, the judgment nisi stated that the principal failed to appear in the 147th District Court of Travis County, while the final judgment stated that the principal had failed to appear in the 167th District Court of Travis County. The reversal was for this obvious variance.

In Bonds v. State, supra, it was said:

"The variance between the judgment nisi and the scire facias is apparent, because the bond was conditioned that the principal make his appearance in one court, while the judgment nisi recites that the principal was to appear in a court other than and different from that named in the bond, and the scire facias recites that the principal was to appear in a court different from that named in the judgment nisi."

In this case the record is clear that the bond was forfeited and the judgment nisi was entered in the 175th District Court of Bexar County. The citation for final judgment and the motion for summary judgment do not, and they need not, recite in which court the principal was to appear and in which court the judgment nisi was entered; however, they do incorporate by reference an attached certified copy of the judgment nisi. The summary judgment does not, and it need not, recite in which court the principal was to appear and in which court the judgment nisi was entered; however, it does refer to the motion for summary judgment including the incorporated certified copy of the judgment nisi. There are...