Reyes v. State, 13-99-280-CV

• Decision Date: 21 September 2000
• Docket Number: No. 13-99-280-CV,13-99-280-CV
• Citation: 31 S.W.3d 343
• Parties: (Tex.App.-Corpus Christi 2000) ROLANDO AND ANDREA REYES, Appellants, v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 343

31 S.W.3d 343 (Tex.App.-Corpus Christi 2000)

ROLANDO AND ANDREA REYES, Appellants, v. THE STATE OF TEXAS, Appellee.

No. 13-99-280-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

September 21, 2000

Rehearing Overrruled November 16, 2000.

On appeal from the 135th District Court of Refugio County, Texas.

Before Justices Hinojosa, Chavez, and Rodriguez.

O P I N I O N

Opinion by Justice Rodriguez.

Rolando Reyes and Andrea Reyes appeal a judgment nisi¹ and subsequent judgment declaring forfeiture of a $25,000.00 bail bond for which they were a surety. We affirm.

Appellants posted an appeal bond for Santos Cuellar in the amount of $25,000.00 with the Sheriff of Refugio County, Texas on January 13, 1998.² Cuellar was not released from custody; instead, he was picked up by federal authorities on January 23, 1998 and was subsequently deported to Mexico. There is no evidence in the record showing why Cuellar was deported.³ On December 8, 1998, the trial court held a hearing pursuant to this Court's order that the trial court appoint new counsel to represent Cuellar on appeal. Although notice was sent to appellants, no notice was sent to Cuellar to be present at the hearing.⁴ After Cuellar did not appear at the hearing, the trial court entered a judgment nisi, declaring forfeiture of the bond. On April 7, 1999, after a hearing, the court entered a final judgment declaring the bond forfeited. This appeal ensued.

By their first issue, appellants contend the trial court erred in failing to exonerate them from liability because the bond in question was not a valid and binding undertaking in law.

Article 22.13 of the code of criminal procedure provides that a surety will be exonerated from liability if "the bond is, for any cause, not a valid and binding undertaking in law." Tex. Code Crim. Proc. Ann. art. 22.13 (3) (Vernon 1989). Furthermore, article 17.29 provides, "[w]hen the accused has given the required bond, either to the magistrate or the officer having him in custody, he shall at once be set at liberty." Tex. Code Crim. Proc. Ann. art. 17.29 (a) (Vernon Supp. 2000).

Appellants assert Cuellar was never released from custody and set at liberty; thus, the bond was not a valid undertaking in law. The evidence shows a bond was posted for Cuellar on January 13, 1998, and he was not released to the federal authorities until January 23, 1998. There was testimony that the Immigration and Naturalization Service ("I.N.S.") placed a detainer⁵ on Cuellar and sent it to the Refugio County Sheriff, and that Cuellar was held in custody in the interim for the I.N.S. There was also testimony that Rolando Reyes was aware of the I.N.S. detainer prior to Cuellar being handed over to the I.N.S. on January 23.⁶

Article 17.08 of the code of criminal procedure outlines the requirements for a bail bond. Tex. Code Crim. Proc. Ann. art. 17.08 (Vernon Supp. 2000). Significantly, it does not require release of the principal. Release of the principal is discussed in article 17.29, which directs that the principal is to be set at liberty when the accused has given the required bond. Tex. Code Crim. Proc. Ann. art. 17.29 (a) (Vernon Supp. 2000). From a reading of articles 17.08 and 17.29, it appears that validity of the bond does not depend upon release of the principal; rather, validity of the bond must be established in order to secure release of the principal.

Bail bonds are contracts between the surety and the State. Morin v. State, 770 S.W.2d 599, 599 (Tex. App.--Houston [14th Dist.] 1989), pet. dism'd per curiam, 800 S.W.2d 552 (Tex. Crim. App. 1990); Keith v. State, 760 S.W.2d 746, 747 (Tex. App.--Fort Worth 1988), aff'd, 802 S.W.2d 690 (Tex. Crim. App. 1990). "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. . . ." Tex. Code Crim. Proc Ann. art. 17.02 (Vernon 1977) (emphasis added). The contract consists of a promise by the surety that the principal will appear before the court in exchange for a promise by the State that it will release the principal. Appearance of the principal before the court and release of the principal by the State relate to performance of the bond, rather than to its validity. The legislature has provided sureties with a remedy for instances in which the principal cannot be released because he is being held in the custody of another jurisdiction. Article 17.16 provides that "A surety may before forfeiture relieve himself of his undertaking by . . . delivering to the sheriff of the county where the prosecution is pending an affidavit stating that the accused is incarcerated in federal custody, in the custody of any state, or in any county of this state." Tex. Code Crim. Proc. Ann. art. 17.16 (a)(2) (Vernon Supp. 2000). Appellants, in this case, elected not to pursue relief under article 17.16. Nonetheless, the bond complied with article 17.08 and was a valid and binding undertaking at law. Appellants' first issue is overruled.

In their second issue, appellants claim the trial court erred in failing to exonerate them from liability because Cuellar's failure to appear was an uncontrollable circumstance that arose from no fault on his part. Article 22.13 provides exoneration for a surety if some "uncontrollable circumstance" that arose through no fault of the principal prevented his appearance at court. Tex. Code Crim. Proc. Ann. art. 23.13 (3) (Vernon 1989).

The court of criminal appeals has held that a principal's incarceration in another state or country is an uncontrollable situation for purposes of article 23.13(3). Hill v. State, 955 S.W.2d 96, 99-100 (Tex. Crim. App. 1997). As the court explained, "[a] principal incarcerated in another jurisdiction could not appear for trial pursuant to the bond if he wanted to." Id. at 99. Similarly, we conclude a principal's deportation from the United States is an uncontrollable situation, as he may not legally reenter the country to appear before a court.

Appellants must still, however, show the circumstances arose through no fault of the principal. Tex. Code Crim. Proc. Ann. art. 23.13 (3) (Vernon 1989). The Hill court examined the "fault" requirement in the context of the principal being incarcerated in another jurisdiction. See Hill, 955 S.W.2d at 99-101. The court commented:

In assessing "fault" the principal's status in the other jurisdiction becomes important is the principal simply awaiting trial there, or has the principal been convicted and is now serving his sentence? If a principal has been convicted of the crime in the other jurisdiction, the reasoning of Williams, supra, makes sense since the principal's illegal actions led to his incarceration and it is the incarceration that prevents his appearance, it cannot be said that his failure to appear "arose through no fault on his part." He certainly bears some modicum of fault in his failure to appear by virtue of the fact that his illegal actions led directly to his incarceration, thereby preventing his appearance.

Id. (emphasis in original). The court further explained, in the context of a summary judgment, that "[i]n order to raise evidence that his failure to appear arose through no fault on his part in...