                             NUMBER 13-08-00175-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


YOLANDA CASTANEDA INDIVIDUALLY
D/B/A Y. CASTANEDA BAIL BONDS,                                                Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
             Memorandum Opinion by Chief Justice Valdez


       Appellant, Yolanda Castaneda, individually and d/b/a Y. Castaneda Bail Bonds

(“Castaneda”), appeals a civil judgment forfeiting a bail bond. In a single issue, Castaneda

contends that the trial court erred by forfeiting a bond in favor of the State where the
principal was originally charged with a misdemeanor and later indicted with a felony

offense. We affirm.

                                     I. BACKGROUND

      On September 11, 2006, Rodolfo Saul Casas Ramos was arrested on the charge

of driving while intoxicated. See TEX . PENAL CODE ANN . § 49.04 (Vernon 2003). On

September 15, 2006, Castaneda executed a $500 bond on Ramos’s behalf. The bond

stated that Ramos was charged with a misdemeanor offense. On April 4, 2007, a grand

jury indicted Ramos with driving while intoxicated, a third-degree charge felony. See id.

The initial offense was enhanced because Ramos had a prior conviction related to driving

a motor vehicle while intoxicated. See id. § 49.09 (Vernon Supp. 2008). The record does

not contain any amendment to the bond after indictment. On May 2, 2007, Ramos failed

to appear in court. The trial court signed a judgment nisi against Ramos and Castaneda

on May 16, 2007.

      On October 29, 2007, the trial court held a bond forfeiture hearing. At the hearing,

the court took judicial notice of the court’s file without objection. However, Castaneda’s

counsel objected to forfeiture, arguing that Castenda was absolved of liability on the

ground that the bond could not secure the same amount on a felony because it was written

for a misdemeanor. On November 13, 2007, the trial court ruled in favor of the State and

signed a final judgment granting forfeiture of the $500 bond. This appeal ensued.

                            II. ENHANCEMENT     BY INDICTMENT


      In her sole issue, Castaneda contends that by enhancing Ramos’s charge, the State

increased her obligations and risk as a surety and, thus, voided the original bond.


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A.     Standard of Review

       Bond forfeitures are criminal matters. State v. Sellers, 790 S.W.2d 316, 321 (Tex.

Crim. App. 1990). However, article 22.10 of the Texas Code of Criminal Procedure

prescribes that civil rules shall govern all proceedings in the trial court following forfeiture.

TEX . CODE. CRIM . PROC . ANN . art. 22.10 (Vernon 2009). We review a judgment of forfeiture

for an abuse of discretion. See Williamson v. State, 68 Tex. Crim. 53, 150 S.W. 892, 892

(1912) (holding that the trial court did not abuse its discretion in rendering judgment for full

amount of bond).

B.     Analysis

       Before we begin our inquiry of whether the enhancement extinguished Castaneda’s

liability, we start by addressing Castaneda’s argument that the bond should be dismissed

under article 17.08 of the Texas Code of Criminal Procedure. See TEX . CODE CRIM . PROC .

ANN . art. 17.08 (Vernon 2005). Article 17.08 provides, in part, that a bail bond shall be

sufficient if it contains the following requisites:

       If the defendant is charged with a felony, that it state that he is charged with
       a felony. If the defendant is charged with a misdemeanor, that it state that he
       is charged with a misdemeanor; . . . .

Id. art. 17.08(3).

       In Myers v. State, the court of criminal appeals considered whether a trial court

erred in granting a final judgment forfeiting a bail bond where the bond did not specifically

describe the offense as a felony or misdemeanor. 486 S.W.2d 564, 565 (Tex. Crim. App.

1972). In Myers, the offense committed by the principal was described in the bond as

“carrying a pistol,” followed by the words “a felony, misdemeanor,” and neither a felony nor

misdemeanor was specified.         Id.   The principal was later indicted for the felony of
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unlawfully carrying a pistol on or about his person. Id. The statute penalizing the carrying

of a pistol “provide[d] for both misdemeanor and felony penalties depending upon the

circumstances under which the offense [was] committed and alleged in the formal

accusation.” Id. The Court held that since the offense could be either a felony or a

misdemeanor, there was no violation of article 17.08(3). Id. at 565-66. Likewise, section

49.04 of the Texas Penal Code provides that driving while intoxicated is a misdemeanor

offense unless it is shown that the person has a previous conviction. See TEX . PENAL CODE

ANN . §§ 49.04, 49.09. Since the offense of driving while intoxicated can be either a

misdemeanor or felony, we find no violation of article 17.08(3). See Myers, 486 S.W.2d

at 565.

       Additionally, Castaneda argues that by enhancing the charge, the State modified

her risk and obligation under the contract. She contends that the bond should therefore

be dismissed because the State’s interference voids the contract. We disagree and find

that the enhancement of an offense, by itself, does not alter the underlying contract. See,

e.g., Garcia v. State, No. 04-08-000437-CV, 2009 Tex. App. LEXIS 2315, at **10-11 (Tex.

App.–San Antonio Apr. 1, 2009, no pet. h.).

       A bail bond is a contract between the surety and the State. Reyes v. State, 31

S.W.3d 343, 345 (Tex. App.–Corpus Christi 2000, no pet.). “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.” Id. at 346. By taking a bail bond,

Castaneda contracted with the State. See id. Castaneda promised the State that Ramos

would appear in exchange for the State’s promise to release Ramos. Although Ramos’s

charge was increased from a misdemeanor to a felony, by continuing to be liable for the

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same bond amount, Castaneda’s obligation to the State remained the same.1 The State

fulfilled its obligation by releasing Ramos. When Ramos failed to appear in court on May

2, 2007, Castaneda failed to fulfill her obligation. Therefore, the bond was subject to

forfeiture.

        Castaneda cites Reese v. United States in support of her argument that adding an

enhancement to the indictment automatically discharges the surety. 76 U.S. (9 Wall.) 13,

21 (1869). Castaneda applies Reese to the present case only by stating that Reese is

“identical to this case” because the government “changed the charge from misdemeanor

to felony.” However, in Reese, the Court held that a surety was discharged on a bail bond

where the lower court allowed the principal to return to Mexico without the surety’s

agreement; Reese does not involve enhancements. Id. at 21-22. Arguably, Reese stands

only for the proposition that “where the performance of a condition is rendered impossible

by either an act of the obligee or of the law, the surety is no longer liable.” Detroit Fid. &

Sur. Co. v. United States, 36 F.2d 682, 684 (6th Cir. 1930). Additionally, Castaneda fails

to reconcile her argument with article 17.09 of the Texas Code of Criminal Procedure,

which states:

        Sec. 1. Where a defendant, in the course of a criminal action, gives bail
        before any court or person authorized by law to take same, for his personal
        appearance before a court or magistrate, to answer a charge against him, the
        said bond 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, and each such bond shall be so conditioned except as
        hereinafter provided.

        Sec. 2. When a defendant has once given bail for his appearance in answer
        1
          Additionally, the possibility of Ram os’s offense being either a m isdem eanor or felony was a factor
that Castaneda could have appreciated before writing the bond. See T EX . P EN AL C OD E A N N . §§ 49.04 (Vernon
2003), 49.09 (Vernon Supp. 2008).
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         to a criminal charge, he shall not be required to give another bond in the
         course of the same criminal action except as herein provided.

TEX . CODE CRIM . PROC . ANN . art. 17.09 §§ 1, 2 (Vernon Supp. 2008).             Here, the

enhancement of the misdemeanor to a felony clearly arose out of the same criminal action.

See, e.g., Garcia, 2009 Tex. App. LEXIS 2315, at **10-11. Accordingly, we hold that the

trial court did not abuse its discretion in rendering a judgment of forfeiture in favor of the

State.

                                      III. CONCLUSION

         Having overruled Castaneda’s sole issue, we affirm the trial court’s judgment.




                                                  ROGELIO VALDEZ
                                                  Chief Justice

Memorandum Opinion delivered and
filed on this the 4th day of June, 2009.




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