Lopez v. State

• Decision Date: 12 September 1984
• Docket Number: No. 04-81-00201-CR,04-81-00201-CR
• Citation: 678 S.W.2d 197
• Parties: Jose Bugarin LOPEZ, Principal Marvin Miller, Surety, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 197

678 S.W.2d 197

Jose Bugarin LOPEZ, Principal Marvin Miller, Surety, Appellants, v. The STATE of Texas, Appellee.

No. 04-81-00201-CR.

Court of Appeals of Texas San Antonio.

Sept. 12, 1984.

Marvin Miller, San Antonio, for appellants.

Bill White, Dist. Atty., Susan Reed, Barry Hitchings, Peter Sakai, Asst. Criminal Dist. Attys., San Antonio, for appellee.

Before CADENA, C.J., and CANTU and DIAL, JJ.

OPINION

CADENA, Chief Justice.

This is an appeal from a summary judgment in the amount of Five Thousand Dollars ($5,000.00), on a bail bond forfeiture with Marvin Miller as surety and Jose Bugarin Lopez as principal. In six grounds of error, appellant Marvin Miller alleges the trial court erred in granting the motion. We affirm the judgment of the trial court.

The record reflects that the case in chief against the principal was called for trial on February 26, 1979, and that he failed to appear and answer. The judgment nisi on the bond against the principal and appellant was entered on April 2, 1979. On June 29, 1979 appellant filed his "First amended Answer" to the judgment nisi. On September 27, 1979 appellant filed his "Second Amended Answers [sic]" and his demand for a jury trial. On August 31, 1979 the State filed its motion for summary judgment, and on October 2 and November 8, 1979 appellant filed original and amended responses to the motion. On March 5, 1980 the then Presiding Judge H.F. Garcia denied the motion. As a result of this, trial on the merits on the bond forfeiture was set for April 2, 1980. At the trial, the then Presiding Judge James Barlow denied appellant's request for a jury trial, revived the State's motion for summary judgment and granted the judgment, which was entered on May 2, 1980. From this action appellant appeals. We will deal with appellant's grounds of error in a different order than they were presented.

Appellant alleges the district court lacked jurisdiction over the forfeiture action in that there were no orders transferring the case from the original magistrate who set the bond to the district court. This argument is without merit. Appellant relies on Daniels v. State, 171 Tex.Cr.R. 596, 352 S.W.2d 267 (1961) in support of this proposition. However, Daniels dealt with two district courts that had concurrent jurisdiction, while here we have a magistrate and a district court. Once the indictment was filed, the district court automatically obtained jurisdiction and an order transferring the case was not required. Ex parte Clear, 573 S.W.2d 224, 229 (Tex.Crim.App.1978) (en banc) (citing Baskins v. State, 75 Tex.Cr.R. 537, 171 S.W. 723 (Tex.Crim.App.1914)). Appellant's fifth ground of error is overruled.

Appellant further alleges that the bond was not sufficient in law because it did not give the principal notice of where to appear nor did it even require him to appear before a court. The bond used in this case is the same bond form used in Balboa v. State, 612 S.W.2d 553 (Tex.Crim.App.1981) (en banc), with the only exception being the changing of the name of the parties and the charge. The Court of Criminal Appeals found the bond to be sufficient. We are bound by the Balboa decision, even if we find the reasoning unpersuasive. Grounds of error numbers three and four are overruled.

Appellant alleges the trial court erred in reviving the motion for summary judgment after the motion had already been denied. The general rule is that it is error for a trial court to enter a summary judgment on behalf of a party who has not filed a motion therefor. Dixon v. Shirley, 531 S.W.2d 386, 387-88 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.). However, once a motion has been filed and denied, it is permissible for the judge that denied the motion or the judge to whom the case has been transferred to change or modify the original order, in that a denial of the motion is interlocutory. Bachman Center Corp. v. Sale, 359 S.W.2d 290, 291-92 (Tex.Civ.App.--Dallas 1962, writ ref'd n.r.e.). See Anderson v. Bormann, 489 S.W.2d 945, 947 (Tex.Civ.App.--San Antonio 1973, writ ref'd n.r.e.).

The remaining two issues, the actual granting of the motion and the denial of a trial by jury, both turn on whether there were disputed facts in issue. Because of this, a properly granted summary judgment automatically results in a proper denial of trial by jury. Swaim v. State, 498 S.W.2d 188, 191 (Tex.Crim.App.1973); see Gulbenkian v. Pennsylvania, 151 Tex. 412, 252 S.W.2d 929, 931 (1952); Schroeder v. Texas & Pacific Railway Co., 243 S.W.2d 261, 262-63 (Tex.Civ.App.--Dallas 1951, no writ).

Appellant alleges he raised various fact issues in verified pleadings, but we must disagree. A majority of what he refers to in his brief as fact issues he has correctly acknowledged as "legal reasoning" in his pleadings. In a motion for summary judgment on a bond forfeiture, there are only four fact issues: whether the surety executed the bond, whether the principal's name was called at the courthouse door, whether the principal failed to appear, and whether he had a valid reason for not appearing. See Riddle v. State, 544 S.W.2d 931 (Tex.Crim.App.1977) (denial of execution an affirmative defense); Swaim v. State, 498 S.W.2d 188, 192 (Tex.Crim.App.1973) (denial of execution, failure of principal to appear, whether name called at courthouse door, and reason for non-appearance all fact issues). Of these, the only issue appellant attempts to raise is whether the principal's name was called at the courthouse door.

The first question, however, is whether appellant's answer to the motion was sufficient to raise this fact issue. There is little doubt that appellant's pleadings leave much to be desired. They appear to be boiler-plate type forms that are filed in response to any and all bond forfeiture cases with visible lines and spaces for filling in the names of the parties, the offenses and the dates. Appellant filed two responses to the motion and labeled the latter as "Defendant-Surety's Response to Amended Motion for Summary Judgment," but since the record reflects no amended motion, we must treat appellant's pleading as an amended answer to the motion for summary judgment. TEX.R.CIV.P. 62.

There are numerous errors in appellant's answer to the motion. Appellant states in his amended answer that the contents of his answers to the judgment nisi "are hereby adopted by reference as part of this response ...." This incorporation, however, was improper and did not result in the raising of any fact issues. Pickering v. First Greenville National Bank, 495 S.W.2d 16, 19 (Tex.Civ.App.--Dallas 1973, writ ref'd n.r.e.). The effect was to tender the pleadings, in this case the original answers, as summary judgment evidence, when in fact they cannot so be considered. Id., Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540 (Tex.1971). Since the answer to the motion absent the incorporation fails to raise any fact issues, the granting of the State's motion was proper.

If we assume the incorporation was proper, appellant's answer would still be deficient in that he failed to either show or attest that the affidavit was made on personal knowledge and that he was competent to testify as to the facts. See Youngstown Sheet & Tube Co. v. Pennsylvania, 363 S.W.2d 230 (Tex.1963). Subsection e of Rule 166-A has always required that opposing affidavits be made on personal knowledge and failure to so do does not create fact issues. TEX.R.CIV.P. 166-A(e); see Pickering v. First Greenville National Bank, 495 S.W.2d 16, 19 (Tex.Civ.App.--Dallas 1973, writ ref'd n.r.e.).

The jurat in both the answers to the judgment nisi and the motion for summary judgment is as follows:

Before me, the undersigned authority, a Notary Public in and for Bexar County, Texas, on this day personally appeared

Marvin Miller

who, being by me first duly sworn, under oath state [sic] that the matters, allegations, facts, and grounds and prayers contained in the foregoing pleadings are true and correct.

This clearly lacks a showing of personal knowledge.

The actual fact allegation by appellant is as follows,

In this respect, Defendant-Surety shows the court that the court did not cause the Defendant-Principal's name to be called in an audible voice at the courthouse door of the Bexar County Courthouse in San Antonio, Texas.

This is also clearly insufficient to raise a fact issue. Appellant only states conclusions and not specific facts that form the basis of the conclusions. See Crain v. Davis, 417 S.W.2d 53 (Tex.1967). He does not state how he knows the principal's name was not called. Because, neither the jurat or the affidavit exhibits any personal knowledge, the judgment of the trial court is affirmed.

CANTU, Justice, concurring.

I write only to express my feelings about a compelled result which is clearly wrong inasmuch as binding authority unnecessarily departs from sound legal reasoning.

In addressing appellant's fourth ground of error, the majority has decided that the bond is proper in law based on Balboa v. State, 612 S.W.2d 553 (Tex.Crim.App.1981) (en banc). However, I question the correctness of Balboa and would follow Judge Onion's dissent. Id. at 558-61 (Onion, J., dissenting). In deciding Balboa, the Court of Criminal Appeals extended the doctrine of waiver into an area previously covered by the doctrine of strict construction of statutes and ignored over one hundred years of cases on point in ruling contrary to them.

Not only was the law solidly entrenched in Texas jurisprudence prior to Balboa but the sound reasoning of Texas decisions on the matter has been adopted by various jurisdictions and repositories of the law. See Dudley v. United States, 242 F.2d 656 (5th Cir.1957); La Grotta v. United States, 77 F.2d 673 (8th Cir.), cert. den. sub nom., Quigley v. United States, 296 U.S. 629, 56 S.Ct. 152, 80 L.Ed. 447 (1935); Joelson v. United States, 287 F. 106 (3rd Cir.1923); State v. Sorensen, 48 Utah 663, 160 P....