Affirmed and Memorandum Opinion filed December 6, 2011.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-00566-CR


                               LUKE BAIR, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee


                      On Appeal from the 240th District Court
                              Fort Bend County, Texas
                       Trial Court Cause No. 08-DCV-165515


                  MEMORANDUM                        OPINION

       Appellant, Luke Bair, appeals a final judgment forfeiting a bail bond for which he
was the surety. We affirm.

                                     BACKGROUND

       In 2005, James Hao Hu Taylor was arrested and charged with murder.            On
December 22, 2005, Bair, as surety, executed a $200,000 cash bond to secure Taylor’s
release from custody. Although the condition is not noted on the bond instrument, it is
undisputed that Taylor was required to wear a monitoring device as a condition of his
release.
       On December 8, 2006, the pre-trial officer supervising Taylor filed a document
requesting revocation of the bond and issuance of a capias for Taylor’s arrest because he
tampered with the monitoring device and did not respond to numerous attempts to contact
him. The record reflects that the trial court held a hearing the same day, but Taylor did
not appear or answer; therefore, the court ordered revocation of the bond pursuant to
Texas Code of Criminal Procedure article 17.40, finding that Taylor violated rules
governing the monitoring program. See Tex. Code Crim. Proc. Ann. art. 17.40(b) (West
Supp. 2011) (providing that, at hearing limited to determining whether defendant violated
a condition of bond related to safety of victim or community, trial court may revoke bond
only if it finds by preponderance of the evidence that defendant committed the violation).
On the same day, the trial court signed the following notation at the bottom of the
document requesting bond revocation: ―You are hereby ordered to issue a capias for
Revocation of Bond as requested in the above affidavit.‖ The district clerk issued the
capias. Taylor was never subsequently arrested and failed to appear for trial.

       On July 23, 2008, the trial court signed a ―Judgment Nisi,‖ ordering forfeiture of
the bond and expressing that the judgment would be made final unless good cause is
shown for Taylor’s failure to appear. On May 19, 2010, the trial court signed a ―Final
Judgment,‖ reciting that it conducted a trial that same day, considered evidence,
including the bond and the judgment nisi on file, and found no sufficient cause for
Taylor’s failure to appear and the judgment of forfeiture should be made final. In the
final judgment, the court ordered that the State recover from Taylor and Bair, jointly and
severally, $200,000, plus $148 in court costs and an administrative fee of $50. Only Bair
now appeals the final judgment.

                                        ANALYSIS
       Chapter 22 of the Texas Code of Criminal Procedure governs forfeiture of bail.
See generally Tex. Code Crim. Proc. Ann. arts. 22.01–.18 (West 2009). Under Chapter
22, ―[w]hen a defendant is bound by bail to appear and fails to appear in any court in
which such case may be pending and at any time when his personal appearance is

                                             2
required under this Code, or by any court or magistrate, a forfeiture of his bail and a
judicial declaration of such forfeiture shall be taken in the manner provided in Article
22.02 . . . and entered by such court.‖ Id. art. 22.01. Article 22.02 requires that the
defendant’s name be called at the courthouse door, and if he does not appear within a
reasonable time, the court render a judicial declaration of forfeiture, i.e., the judgment
nisi, stating the judgment will become final unless good cause is shown for the
defendant’s failure to appear. Id. art. 22.02; see Kubosh v. State, 241 S.W.3d 60, 63
(Tex. Crim. App. 2007). After entry of this judgment nisi, citation must be served on the
surety notifying the surety that the bond has been forfeited and requiring the surety to
appear and show cause why the judgment of forfeiture should not be made final. Tex.
Code Crim. Proc. Ann. art. 22.03(a); see id. arts. 22.03–.09, 22.11 (prescribing rules for
service of citation and surety’s right to answer). The proceeding relative to rendition of
final judgment on the declaration of forfeiture is docketed on the scire facias or civil
docket and governed by the same rules applicable to other civil suits. See id. art. 22.10.
The judgment shall be made final if, upon trial of the issues presented, no sufficient cause
is shown for the principal’s failure to appear. Id. art. 22.14.

        In a bond forfeiture proceeding, the State bears the burden of proof. Kubosh, 241
S.W.3d at 63. The elements of the State’s cause are the bond and the judgment nisi. Id.
The court may exonerate the defendant and his sureties from liability on the forfeiture,
remit the amount of the forfeiture, or set aside the forfeiture ―only as expressly provided
by‖ Chapter 22. Tex. Code Crim. Proc. Ann. art. 22.125. Article 22.13 provides that
certain enumerated causes, including the following, ―and no other‖ will exonerate the
defendant and his sureties from liability upon the forfeiture taken: ―That the bond is, for
any cause, not a valid and binding undertaking in law.‖ Id. art. 22.13(a)(1).

        Citing this provision, Bair contends the bond was ―not a valid and binding
undertaking in law‖ at the time of forfeiture because it was previously revoked.1

        1
          Bair also suggests the revocation was invalid because the trial court did not conduct a hearing or
enter findings relative to the revocation proceeding, see Tex. Code Crim. Proc. Ann. art 17.40(b), and
should have delayed revocation until Taylor was returned to custody pursuant to the capias. However,
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However, no record was made of the trial conducted by the court before rendition of final
judgment. Therefore, the appellate record does not reflect that Bair presented to the trial
court the contention he now raises on appeal.2

        The Court of Criminal Appeals has characterized the grounds for exoneration
under article 22.13 as ―affirmative defense[s]‖ to liability upon the forfeiture.                    See
Castaneda v. State, 138 S.W.3d 304, 321, 323 (Tex. Crim. App. 2004) (op. on rehearing).
The party asserting an affirmative defense bears the burden to plead, prove, and secure
findings on the defense. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.
1988). Indeed, Chapter 22 contemplates that the surety bears the burden to show cause
why a judgment of forfeiture should not be made final. See Tex. Code Crim. Proc. Ann.
arts. 22.03(a); 22.11; 22.14. Moreover, to preserve an issue for appellate review, a party
must make a timely objection or request to the trial court, sufficiently stating the specific
grounds for the requested ruling, unless apparent from the context. Tex. R. App. P.
33.1(a).

        In Castaneda, the appellant surety challenged a judgment of forfeiture on the
following grounds, among other contentions: (1) he was released from liability on the
bond before the State moved for forfeiture; and (2) he was exonerated from liability
because the bond ―was . . . not a valid and binding undertaking in law‖ for various
reasons. 138 S.W.3d at 322–23. The Court of Criminal Appeals refused to consider
these two grounds because the surety failed to present them to the trial court. Id. at 323;
see Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (recognizing that it
violates ―ordinary notions of procedural default‖ for court of appeals to reverse trial
court’s decision on legal theory not presented to trial court by complaining party).

the court recited in the judgment nisi that it conducted a hearing and made the necessary findings on the
revocation request. Nonetheless, whether revocation was valid is immaterial to the ultimate appellate
issue raised by Bair because this case is not an appeal from the revocation. Instead, we construe the gist
of Bair’s argument as a contention that forfeiture was improper because the bond was ―not a valid and
binding undertaking in law‖ due to the previous revocation, regardless of whether revocation was valid.
        2
          The appellate record does not reflect that Bair requested the reporter to record the trial or
objected to the lack of a recording. Nevertheless, on appeal, Bair does not mention, much less complain
about, the lack of such a record.
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       Likewise, because the record does not reflect that Bair presented to the trial court
the affirmative defense he now raises on appeal, we may not reverse the judgment on this
ground, even if it is meritorious. Finally, Bair did not file a motion for new trial or
otherwise present his contention to the court before or after trial, assuming without
deciding that, absent a record of the trial, he would have properly preserved his
contention via motion for new trial or some other method.3
       Accordingly, we overrule Bair’s sole issue and affirm the trial court’s judgment.




                                               /s/       Charles W. Seymore
                                                         Justice



Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




       3
          In his answer, Bair generally alleged the bond was ―not a valid or binding undertaking at law‖
but failed to cite any specific reason, and the record does not indicate he subsequently presented this
general defense to the trial court, much less the specific basis he now advances on appeal.

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