Green v. State

• Decision Date: 02 December 2021
• Docket Number: 02-21-00013-CV
• Parties: Maxie D. Green d/b/a A to Z Bail Bonds, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

Maxie D. Green d/b/a A to Z Bail Bonds, Appellant v. The State of Texas, Appellee

No. 02-21-00013-CV

Court of Appeals of Texas, Second District, Fort Worth

December 2, 2021

On Appeal from the 30th District Court Wichita County, Texas Trial Court No. 190, 340-A

Before Sudderth, C.J.; Kerr and Walker, JJ.

MEMORANDUM OPINION

Bonnie Sudderth, Chief Justice

Introduction

After Maria Delcarman Sosa-Esparza was indicted for a felony offense in August 2017, she entered into a bail bond with Appellant Maxie D. Green d/b/a A to Z Bail Bonds as surety securing Sosa's appearance in the trial court. Sosa was ordered to appear for a pretrial conference on March 1, 2019 but she failed to appear. The trial court entered a judgment nisi, which states that Sosa's name had been called "at the courtroom door." Cf. Tex. Code. Crim. Proc. Ann. art. 22.02 (requiring call at the "courthouse door"). Both Green and Sosa were cited to appear and show cause why the forfeiture should not be made final. Green timely answered, but Sosa defaulted and is not a party to this appeal.

The State moved for a traditional summary judgment on the bond forfeiture, and Green responded by arguing that the State's evidence raised issues of fact on the essential elements of its case, namely whether Sosa's name was called at the courthouse door. Green also lodged objections to the State's summary judgment evidence. The trial court granted the State's motion without ruling on Green's objections, and Green appealed, arguing in three points that the State's own evidence raised issues of fact as to (1) whether Green received proper notice of the pretrial hearing (2) whether Sosa's name was called at the courthouse door; and (3) the proper identification of the defendant. We sustain Green's second point, reverse the trial court's judgment, and remand the case for further proceedings.^[1] See Tex. R. App. P. 43.2(d).

Standard of Review

In a summary judgment case, the issue on appeal is whether the movant established that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant's own summary judgment evidence can create an issue of fact. Keever v. Hall & Northway Advertising, Inc., 727 S.W.2d 704, 706 (Tex. App.- Dallas 1987, no pet.); see Luke v. Unifund CCR Partners, No. 2-06-444-CV, 2007 WL 2460327, at *4-5 (Tex. App.-Fort Worth Aug. 31, 2007, no pet.) (mem. op.).

In a traditional summary judgment, if the movant fails to establish its entitlement to summary judgment, the burden of proof never shifts to the nonmovant. Draughon v. Johnson, 361 S.W.3d 81, 87-88 (Tex. 2021).

Applicable Law

Though criminal actions, bond forfeiture cases are reviewed on appeal using the same rules as civil suits. Tex. Code Crim. Proc. Ann. arts. 44.42, 44.44; Benson v. State, 476 S.W.3d 136, 138 (Tex. App.-Austin 2015, pet. ref'd). Bond forfeiture proceedings are entirely statutory, and courts strictly construe the statutes governing them. Hernden v. State, 865 S.W.2d 521, 523 (Tex. App.-San Antonio 1993, no pet.).

The Code of Criminal Procedure outlines the statutory framework for bond forfeiture proceedings:

Bail bonds and personal bonds are forfeited in the following manner: 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.

Tex. Code. Crim. Proc. Ann. art. 22.02.

The essential elements of the State's bond forfeiture claim are the bond and judgment nisi. Alvarez v. State, 861 S.W.2d 878, 880-81 (Tex. Crim. App. 1992). A judgment nisi is prima facie proof that the statutory elements have been satisfied. Tocher v. State, 517 S.W.2d 299, 301 (Tex. Crim. App. 1975) (quoting Thompson v. State, 31 Tex. 166, 166 (1868) ("This court will presume that the judgment nisi was taken in accordance with the statutory requirements, unless it affirmatively appears otherwise.")). When moving for summary judgment on a bond forfeiture, the State must conclusively prove three facts: (1) a valid bond; (2) the failure of the defendant to appear at a criminal hearing at which his presence is required; and (3) the calling of the defendant's name distinctly at the courthouse door. Alvarez , 861 S.W.2d at 881, 888; see Tex. Code Crim. Proc. Ann. art. 22.02.

Application

Because the judgment nisi states that Sosa's name was called at the courtroom door, as opposed to the courthouse door, Green contends that the State failed to establish that there exist no genuine issues of material fact concerning whether Sosa's name was called at the courthouse door as required by Article 22.02. See Tex. Code. Crim. Proc. Ann. art. 22.02. We agree.

The State's Evidence

To prove that Sosa's name was called at the courthouse door, the State proffered three pieces of summary judgment evidence: (1) a certified copy of the judgment nisi stating that Sosa's name "was distinctly called at the courtroom door"; (2) a certified certification of call stating that Sosa's name was called "three times loudly and distinctly in compliance with Texas Code of Criminal Procedure Article 22.02";^[2] and (3) two unanswered requests for admission-Request for Admission No. 8 and Request for Admission No. 9-which the State argues were deemed admitted by operation of law.^[3] Request for Admission No. 8 asked Green to admit or deny that "Defendant-Principal's name was distinctly called outside the Wichita County courtroom door for a scheduled hearing on the hearing date." Request for Admission No. 9 requested that Green admit or deny that "Defendant-Principal was given reasonable time and did not appear in Court for a scheduled hearing on the hearing date."

Green's Objection Limits Evidentiary Scope

In his response to the State's motion, Green objected to the certification of call as conclusory. Specifically, Green objected to the statement that Sosa's name was called "distinctly in compliance with Texas Code of Criminal Procedure Article 22.02." There is no indication in the record that the court ruled on this objection.

Typically, to preserve an objection to summary judgment evidence for appellate review, the objecting party must have obtained a ruling from the trial court. Tex.R.App.P. 33.1(a)(2)(A); see Lenz v. Lenz , 79 S.W.3d 10, 13 (Tex. 2002). However, objecting to a statement in summary judgment evidence as conclusory asserts a defect of substance rather than form and can be raised for the first time on appeal. Albright v. Good Samaritan Socy-Denton Vill., No. 02-16-00090-CV, 2017 WL 1428724, at *2 (Tex. App.-Fort Worth April 20, 2017, no pet.) (mem. op.); see also Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018). A statement that is nothing more than a legal conclusion is incompetent summary judgment evidence because it does not provide the underlying facts to support its conclusion. Brown v. Mesa Distribs. Inc., 414 S.W.3d 279, 287 (Tex. App.-Houston [1st Dist] 2013, no pet); see Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (holding statements, "I acted properly . . . and that I have not violated the [DTPA] . . . [and] did not breach my contract," were legally conclusive); Gail v. Berry, 343 S.W.3d 520, 523 (Tex. App.-Eastland 2011, pet. denied) (holding statement, "I do not believe that this is a case of mutual mistake," was legally conclusive); Doherty v. Old Place, Inc., 316 S.W.3d 840, 845 (Tex. App.- Houston [14th Dist] 2010, no pet.) (holding statement, "I claim fee simple title," was legally conclusive); see also In re S.B., No. 02-19-00048-CV, 2019 WL 3334615, at *8 (Tex. App.-Fort Worth July 25, 2019, pet. denied) (mem. op.) (explaining that a conclusory statement is one that does not provide the underlying facts to support the conclusion and that without revealing the conclusion's basis, the statement constitutes no evidence at all); Long v. Faris, No. 02-17-00236-CV, 2018 WL 1192252, at *6 (Tex. App.-Fort Worth Mar. 8, 2018, no pet.) (mem. op.) ("Conclusory evidence is not competent summary judgment proof . . . .").

While the State's certification of call provides some factual basis to support how Sosa's name was called ("three times loudly and distinctly"), it fails to provide any factual basis for where Sosa's name was called. Simply stating that the call was made in compliance with Article 22.02 is nothing more than legally conclusive on this fact. See Brown, 414 S.W.3d at 287. Accordingly, this statement is incompetent evidence to support summary judgment on the fact issue of whether Sosa's name was called at the courthouse door. See Anderson, 808 S.W.2d at 55.

The State Did Not Meet Its Initial Burden

Thus we must determine-based only on the judgment nisi and deemed admissions-whether the State established conclusively that Sosa's name was called at the courthouse door. We conclude that it did not.

Both the judgment nisi and the deemed admissions provide only that Sosa's name was called at the courtroom ...