McConathy v. State, s. 50573

• Decision Date: 08 October 1975
• Docket Number: Nos. 50573,s. 50573
• Citation: 528 S.W.2d 594
• Parties: Richard McCONATHY, Appellant, v. The STATE of Texas, Appellee. to 50575.
• Court: Texas Court of Criminal Appeals

Page 594

528 S.W.2d 594

Richard McCONATHY, Appellant, v. The STATE of Texas, Appellee.

Nos. 50573 to 50575.

Court of Criminal Appeals of Texas.

Oct. 8, 1975.

Kerry P. Fitzgerald, Dallas, for appellant.

Henry Wade, Dist. Atty., Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

These appeals are taken from final bond forfeiture judgments in the same court--County Criminal Court of Dallas County, where the appellant McConathy was the bondsman-surety on all three bonds.

These cases present the question of whether the bond can be forfeited (a) when the principal fails to serve the jail time assessed as punishment and does not pay his fine and court costs; (b) when he serves his jail time but does not pay his fine and court costs; and (c) when he is placed on misdemeanor probation and violates the probationary conditions to pay a fine and court costs.

The facts vary somewhat in each case. In Cause No. 50,573 (Trial Court No. CCR 74--189), the defendant Morphis was charged with driving while intoxicated. On March 7, 1974, the appellant-surety McConathy posted an appearance or bail bond for the principal Morphis in the amount of $200.00 On July 16, 1974, Morphis appeared in court represented by counsel, executed a jury waiver and waiver of delay of sentencing, and entered a guilty plea before the court. The court then assessed punishment at three (3) days in the county jail and a fine of $250.00 plus court costs. Having waived any delay in sentencing, sentence was imposed on the same date. No motions for new trial or in arrest of judgment were filed and no notice of appeal given. On the docket sheet only is found the notation, 'The time is to be served and the fine and cost are to be paid not later than the 20 day of September A.D. 1974.' It appears that the defendant-principal was then released. On February 13, 1975, the court entered a judgment nisi, and on February 14, 1975, a capias pro fine was issued. On February 17, 1975, a 'Notice to Sureties' was issued. A citation was issued on March 18, 1975, and executed on March 20, 1975. On April 25, 1975, a hearing was held to determine why final judgment should not be entered, at the conclusion of which the trial court made the judgment final.

In Cause No. 50,575 (Trial Court No. CCR 74--2709), Chris Burton was arrested on July 5, 1974, for the misdemeanor offense of escape after having been arrested for possessing fireworks. On July 7, 1974, the appellant-surety filed an appearance or bail bond for Burton in the amount of $500.00.

On November 22, 1974, Burton appeared in open court represented by counsel, executed a waiver of jury trial and waiver of delay of sentencing, and entered a plea of guilty before the court. Punishment was assessed at three (3) days' confinement in jail and a fine of $175.00. Court costs of $50.00 were assessed. Burton served three (3) days in jail, but did not pay the fine and court costs which the court ordered to be paid not later than January 22, 1975.

On February 13, 1975, the appellant-surety received notice that the bail bond had been forfeited because of the principal Burton's failure to pay the fine and court costs. Citation was issued and after hearing on April 25, 1975, a final judgment was issued.

In Cause No. 50,574 (Trial Court No. CCR 74--1142), Daniel Alvarado, Jr., was charged with driving while intoxicated. After his original bondsman 'went off' his bond, the appellant McConathy posted an appearance or bail bond for Alvarado as principal on June 10, 1974, in the amount of $200.00.

On September 10, 1974, Alvarado in open court waived the appointment of counsel, filed a motion for probation, and entered a plea of guilty before the court. The court assessed his punishment at sixty (60) days in jail and a fine of $250.00, but suspended action in accordance with Article 42.13, Vernon's Ann.C.C.P., and placed the defendant on misdemeanor probation for a period of twelve (12) months. Among the probationary conditions imposed was that the defendant Alvarado pay his court costs and further a fine of $250.00 no later than November 11, 1974. No notice of appeal was given. When the defendant failed to comply with the above probationary conditions, the trial court set the case on the docket for January 22, 1975. When the defendant-probationer did not appear, the court forfeited the bail bond and entered a judgment nisi. On January 23, 1975, notice was sent to the appellant that the bond had been forfeited for failure of Alvarado to pay his fine and court costs. Scire facias was issued, and on April 25, following a hearing, the judgment was made final.

Article 17.01, Vernon's Ann.C.C.P., provides:

"Bail' is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.'

Article 17.02, Vernon's Ann.C.C.P., provides in part:

'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; . . ..'

The prime object or purpose of bail is to secure the presence of an accused upon trial of an accusation against him. It is not a revenue measure intended to be a substitution for a fine, but is intended to secure the trial of the alleged offender rather than turn his securities or those of his bondsman into a penalty. Grantham v. State, 408 S.W.2d 235 (Tex.Cr.App.1966), and cases there cited.

Article 17.09, Vernon's Ann.C.C.P., provides that a bail bond for the appearance of a defendant 'shall be valid and binding upon the defendant and his sureties, if any, thereon, for the defendant's personal appearance before the court or magistrate designated therein, as well as before any other court to which same may be transferred, and for any and all subsequent proceedings had relative to the charge, . . ..'

The same form bonds were utilized in all three cases in the appeals before us, and each bond was conditioned that the defendant-principal appear to answer the charge against him 'and for all subsequent proceedings had relative to the charge.'

The State takes the position that the proceedings at which each principal failed to appear were 'subsequent proceedings had relative to the charge' upon which...