Safety Nat. Cas. Corp. v. State
| Decision Date | 30 November 2006 |
| Docket Number | No. 08-05-00209-CV.,08-05-00209-CV. |
| Citation | 225 S.W.3d 684 |
| Parties | SAFETY NATIONAL CASUALTY CORPORATION (Agent Manuel Leyva d/b/a Rocky Bail Bonds), Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Tony R. Conde, Jr., El Paso, for Appellant.
Arne Carl Schonberger, Asst. County Atty., El Paso, for Appellee/State
Before CHEW, C.J., McCLURE, and BARAJAS, C.J. (Ret.).
Safety National Casualty Corporation (Agent Manuel Leyva d/b/a Rocky Bail Bonds) ("Safety National") appeals from a final judgment on a bond forfeiture. The trial court remitted 50 percent of the $10,000 bond and awarded judgment to the State of Texas for $5,000 plus court costs. We affirm.
On February 18, 2004, Safety National posted a $10,000 surety bond on behalf of Willie Guerrero ("Guerrero") who was charged with felony theft.1 Guerrero did not appear for arraignment/pretrial hearing set for 1:30 p.m. on March 25, 2004. Mayra Botello, who works for Rocky Bail Bonds, learned at about 2:30 p.m. that same day that Guerrero had not appeared at the scheduled hearing so she called him at his home. After some discussion with Guerrero and his mother, Guerrero said that he could go to court that afternoon. Botello called the court coordinator for the 171st District Court and advised her of Guerrero's availability to appear that afternoon, but the coordinator told her to bring Guerrero to court the following morning. The trial court usually followed a procedure whereby the bond would not be forfeited if the defendant-principal would appear by 8:30 a.m. the following day and provide the court with an adequate reason for his non-appearance the previous day. Guerrero appeared before the trial court the following morning but he did not provide the court with good cause for his failure to appear at the hearing on the previous day. The trial court judge recalled that Guerrero initially lied to her and blamed the weather and car troubles before stating that he had simply forgotten. The judge was offended by Guerrero's nonchalant attitude regarding his failure to appear. Consequently, the court forfeited the bond and Guerrero was taken immediately into custody.
The trial court entered the judgment nisi on March 26, 2004. Safety National filed its written answer on April 16, 2004. Safety National raised only a general denial and did not raise the affirmative defense of exoneration. The trial court conducted the final hearing on September 28, 2004. Guerrero did not appear at the final hearing on the judgment nisi and the trial court awarded a default judgment in the full amount of the bond against him. Safety National argued at the final hearing that it was entitled to exoneration under Article 22.13(a)(5) of the Code of Criminal Procedure2 because Guerrero was taken into custody on March 26, 2004. The State argued that Article 22.13(a)(5) violated the separation of powers provision of the Texas Constitution because it unduly interfered with the entry and timing of the final judgment and with the court's ability to control its docket. The trial court did not immediately enter a final judgment but instead requested additional briefing by the parties on the constitutional issues. In its brief, Safety National requested remittitur pursuant to Article 22.16(a) of the Code of Criminal Procedure.3
On January 24, 2005, the trial court conducted an additional hearing on the constitutional issues, and on March 7, 2005, the court entered judgment in favor of the State for $5,000 (one-half of the original bond) plus court costs. In its findings of fact and conclusions of law, the court found that good cause had not been shown for Guerrero's failure to appear. Additionally, the court concluded that Article 22.13(a)(5) is unconstitutional because it unduly interferes with the court's discretion to set and forfeit bonds, and to control its docket. The court also found that Article 22.13(a)(5) unconstitutionally interferes with not only the timing and finality of judgments, but also with the court's discretion to remit all or none of a forfeited amount.
Safety National raises four issues related to the affirmative defense of exoneration.4 In Issues One, Two, and Three, Safety National contends that it is entitled to exoneration pursuant to Article 22.13(a)(5) of the Code of Criminal Procedure. These issues do not discuss the constitutionality of Article 22.13(a)(5) but instead are directed at the court's failure to exonerate the surety based on the undisputed evidence. We interpret these issues as a challenge to the legal sufficiency of the evidence to support the trial court's non-finding of incarceration as an affirmative defense to liability upon the bond forfeiture taken. The trial court, however, found that Article 22.13(a)(5) is unconstitutional as violative of the separation of powers doctrine and refused to apply it to the case. The sufficiency issues are therefore irrelevant unless Safety National brings forward and properly briefs an issue on appeal challenging the trial court's determination that Article 22.13(a)(5) is unconstitutional. The only issue which might be construed as an attempt to meet this burden is Issue Five where Safety National asserts that several of the trial court's legal conclusions are erroneous. The State responds, in part, that Issue Five is inadequately briefed.
The Rules of Appellate Procedure require that the brief contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(h); see Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 671 (Tex.App.-Houston [14th Dist.] 1994, writ denied)(when stated issues are not supported by citation to appropriate authorities or to the record, but contain mere conclusory arguments, those issues are waived). The appellant bears the burden of discussing his assertion of error. Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 900 (Tex.App.-Dallas 2000, pet. denied); see also Thomas v. Olympus/Nelson Prop. Mgmt., 148 S.W.3d 395, 401 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We do not have a duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred. Shelton v. Sargent, 144 S.W.3d 113, 129 (Tex.App.-Fort Worth 2004, pet. denied); Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied).
The first question is whether Issue Five can be construed as addressing the constitutionality of Article 22.13(a)(5). Safety National's argument consists of approximately one-half of a page, stating:
The legal conclusions of the trial court identified as D17-19, E20-25 and 27-30, and numbers 6, 8, 10, and 12 are erroneous (record citation omitted). The trial court concluded that Article 22.13(a)(5), TEX. CODE CRIM. PROC., usurp (sic) it's (sic) power. These conclusions are erroneous as the subject statute is consistent with the purpose of bail, to secure the presence of the accused for trial, and it does not prevent the court from proceeding to trial whenever it chooses. Trammel v. State, 529 S.W.2d 528, 529 (Tex.Crim.App.1975); McConathy v. State, 528 S.W.2d 594, 596 (Tex. Cr.App.1975) and reasoning and authorities cited in Amicus Brief filed in the trial court on October 22, 2004 (Appendix G).
Appellant would show that the subject conclusions of law be disregarded as improper as the conclusions are not on controlling issues. Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex.App.-Houston [1st Dist.] 1995, writ denied). For the above reasons, and as the review of conclusions of law is de novo, Appellant requests that these erroneous conclusions of law be reversed. Austin Hardwoods, Inc. v. Vanden Berghe, 917 S.W.2d 320, 322 (Tex.App.-El Paso 1995, writ denied); Hydrocarbon Mgmt. v. Tracker Expl., 861 S.W.2d 427, 431 (Tex. App.-Amarillo 1993, no writ).
We recognize that Safety National identifies the particular legal conclusions it wishes to challenge and it provides a standard for reviewing those conclusions. The brief does not, however, address the trial court's determination that Article 22.13(a)(5) is unconstitutional because it violates the separation of powers provision. Instead, the brief contends that the trial court's legal conclusions should be disregarded because they are not on controlling issues. The constitutionality of the statute is certainly a controlling issue in this case. Another indication that Safety National did not intend to address the issue of Article 22.13(a)(5)'s constitutionality is seen by the absence of citation or discussion of any of the case law relevant to this significant constitutional issue.
Even if we could construe Safety National's brief as raising the issue of Article 22.13(a)(5)'s constitutionality, the brief contains neither argument or authority on the issue. Safety National's reference to an amicus brief filed in the trial court, without any discussion of the authorities or argument made in that brief, does not constitute adequate briefing of the issue on appeal. We conclude that Safety National has waived any issue regarding the trial court's determination that Article 22.13(a)(5) is unconstitutional. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994)(citing long-standing rule that a point may be waived due to inadequate briefing). Accordingly, Issues One through Three and Issue Five are overruled.
In Issue Four, Safety National asserts that it is entitled to mandatory remittitur of the entire bond under Article 22.16(a) because Guerrero was released on a new bail in the criminal case. The State responds that Safety National waived the remittitur issue because it did not file a written motion as required by...
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