      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00518-CV
                                      NO. 03-10-00519-CV
                                      NO. 03-10-00520-CV
                                      NO. 03-10-00521-CV
                                      NO. 03-10-00522-CV
                                      NO. 03-10-00523-CV



                                  Shawn C. Brown, Appellant

                                                v.

                                  The State of Texas, Appellee


   FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
 NOS. N2009-004, 005, 006, 007, 008, 009, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Shawn C. Brown appeals six trial-court judgments, each of which forfeited a bond

and rendered judgment against him for the amount of the bond plus court costs. Brown raises the

same issues in each of the six related cases, which we consolidated for briefing and submission. We

will affirm the judgments.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Brown posted six appearance bonds for Daniel Chenu after Chenu was indicted for

six counts of felony offenses. After Chenu was released from custody, but before his next scheduled

court date, Brown filed a “Motion and Affidavit of Surety to Surrender” in each count. In each
motion, Brown sought “to be released from his obligations as Surety” and requested that the court

issue a capias for Chenu. The trial court initially denied the motions because the orders Brown

presented for the court’s signature included language that released Brown from his obligations as

surety without requiring that he actually surrender Chenu into custody. The docket sheet indicates

that the court offered to issue a capias if the release language was removed from the order, but that

Brown declined the offer. Later that day, the court signed six orders that directed the clerk to issue

a capias for each count. The orders declared that Brown’s liability on the bonds would not be

released until Chenu was “placed in the Comal County Jail and any arrest costs incurred by the

county . . . are paid in full.” Subsequently, Chenu failed to appear in court on February 5, 2009, as

ordered. The six bonds were declared forfeited and the court signed a judgment nisi in each count.

On February 19, 2009, the State filed the judgments nisi in the trial court, and each was assigned a

separate cause number. Brown was served with citation and the judgment nisi in each case on

February 25, 2009. Brown filed answers in the six cases on March 9, 2009. After a trial on the

merits, the trial court rendered judgment in each case awarding the State the total amount of the bond

plus court costs. The court also made extensive findings of fact and conclusions of law. Brown

appealed the six judgments. Because he challenged all the judgments on identical grounds, we

granted his request that the appeals be consolidated for purposes of briefing and submission.


                                           DISCUSSION

               Article 17.19 of the Texas Code of Criminal Procedure provides in relevant part:




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        (a)     Any surety, desiring to surrender his principal . . . may file an affidavit of
                such intention before the court or magistrate before which the prosecution is
                pending. The affidavit must state:

                (1)     the court and cause number of the case;
                (2)     the name of the defendant;
                (3)     the offense with which the defendant is charged;
                (4)     the date of the bond;
                (5)     the cause for the surrender; and
                (6)     that notice of the surety’s intention to surrender the principal has been
                        given as required by this subsection.

        (b)     In a prosecution pending before a court, if the court finds that there is cause
                for the surety to surrender the surety’s principal, the court shall issue a capias
                for the principal. . . . It is an affirmative defense to any liability on the bond
                that:

                (1)     the court [] refused to issue a capias [] for the principal; and
                (2)     after refusal to issue the capias [], the principal failed to appear.
        ....

        (d)     [A] capias issued under this article shall be issued to the sheriff of the county
                in which the case is pending, and a copy of the [] capias shall be issued to the
                surety or his agent.

        (e)     [A] capias issued under this article may be executed by a peace officer, a
                security officer, or a private investigator licensed in this state.


Tex. Code Crim. Proc. Ann. art. 17.19 (West Supp. 2010). In his first appellate issue, Brown asserts

that he did not receive notice that the trial court had in fact issued a capias after initially denying his

motion, and that, as a consequence, the capias that was issued “should be void.”1 Brown contends

that if the capias is “void,” it is as if no capias was issued despite his request, and he is entitled to

the affirmative defense contained in article 17.19(b). Although Brown pleaded the article 17.19(b)


        1
         Brown cites no authority, and we are aware of none, supporting his assertion that his failure
to receive notice that the capias issued renders it void.

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affirmative defense in his answer, he did not present the court with any evidence or argument related

to the defense at trial and did not refer to the defense in his motion for reconsideration or for new

trial. To preserve a complaint for appellate review, a party must first present the issue to the trial

court. Tex. R. App. P. 33.1(a). Merely raising an affirmative defense in an answer to a petition does

not preserve that defense on appeal from a judgment in favor of the plaintiff. See TPS Freight

Distribs., Inc. v. Texas Commerce Bank-Dallas, 788 S.W.2d 456, 459 (Tex. App.—Fort Worth 1990,

no writ). Moreover, Brown did not present the court with any evidence tending to show that he did

not receive notice that the capias had issued, a fact central to his claimed affirmative defense.

               A party asserting an affirmative defense in a trial before the court is also required to

request findings in support of the defense in order to avoid waiver on appeal. Intec Sys. v. Lowrey,

230 S.W.3d 913, 918 (Tex. App.—Dallas 2007, no pet.). And when the trial court makes findings

of fact that do not establish any elements of the defense, as the court did here, the party relying on

that defense must file a request for additional findings to avoid waiver of that defense on appeal.

Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900, 907 (Tex. App.—Houston [14th Dist.] 1991, writ

denied). Brown filed no request for findings on any issue related to the affirmative defense generally

or to the specific issue of whether a copy of the capias was issued to him. To properly preserve the

defense for purposes of appeal, Brown had to expressly present it to the trial court and request

additional or amended findings. He failed to do so and thereby abandoned the defense.

               Even if Brown had preserved this issue for appeal, it is inadequately briefed and

unsupported by argument or authority, and therefore presents nothing for this Court to review. See

General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 n.1 (Tex. 2001). Texas



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Rule of Appellate Procedure 38.1(h) requires appellate briefs to “contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the record.”

Appellate issues are waived if an appellant fails to support his contention with citations to

appropriate authority, or cites only to a single, non-controlling case. Tex. R. App. P. 38.1(h);

Anderson Petro-Equip., Inc. v. State, 317 S.W.3d 812, 819 (Tex. App.—Austin 2010, pet. denied).

This rule does not prohibit an appellant from making a novel argument for which there is no

authority directly on point. But even a novel contention must be grounded in analogous case law

or provide a relevant jurisprudential framework for evaluating the claim. Johnson v. Structured

Asset Servs., LLC, 148 S.W.3d 711, 725 (Tex. App.—Dallas 2004, no pet.) (citing Tong v. State,

25 S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 523 U.S. 1053 (2001)). Brown has cited

no direct or analogous authority in support of his contention that, if he did not receive notice of the

capias, it was “as if no capias had issued.” We overrule Brown’s first appellate issue.

                In his second issue, Brown contends that the trial court had no jurisdiction to render

the judgments awarding the full amount of the bonds to the State because its “plenary jurisdiction

had expired.” Brown argues that the trial court’s January 30, 2009 Orders Regarding Request to

Surrender Defendant entered by the court in each count of the criminal case against Chenu are “the

final order[s] as to Shawn Brown.” These orders contain recitations that “Shawn Brown shall be,

in all things, released from further liability on the bond once [Chenu] is placed in the Comal County

Jail and any arrest costs incurred by the county by this request are paid in full.” Brown argues that

this order was a “final” order and after the expiration of thirty days, the trial court lacked jurisdiction

to modify the order and render judgment against him in the amount of the bonds. This argument



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fails because the Order Regarding Request to Surrender Defendant is not a final order adjudicating

Brown’s liability under the bond. The plain language in the orders regarding releasing Brown

from liability on the bonds indicates that such release was conditional. See Hinde v. Hinde,

701 S.W.2d 637, 639 (Tex. 1985) (final judgment cannot condition recovery on uncertain events or

base its validity on what parties might or might not do post-judgment). The orders themselves are

not final orders, nor do they purport to finally adjudicate Brown’s liability as surety under the bonds.

                Furthermore, Brown confuses the trial court’s plenary jurisdiction to modify a

judgment rendered in Chenu’s criminal case with its original jurisdiction to render a decision in a

subsequently filed bond forfeiture proceeding. The judgments from which Brown appeals are not

modifications of any orders entered in the criminal case but rather are the final judgments in separate

bond forfeiture proceedings—proceedings that were assigned different cause numbers and involved

different issues from those before the court in the criminal case against Chenu. See Tex. Code Crim.

Proc. Ann. art. 22.10 (West 2009) (“When a forfeiture has been declared upon a bond, the court or

clerk shall docket the case upon the scire facias or upon the civil docket, in the name of the State of

Texas, as plaintiff, and the principal and his sureties, if any, as defendants; and, except as otherwise

provided by this chapter, the proceedings had therein shall be governed by the same rules governing

other civil suits.”), 22.03 (West 2009) (upon entry of judgment nisi, citation shall issue notifying

sureties that bond has been forfeited and requiring them to appear and show cause why judgment of

forfeiture should not be made final). When Chenu failed to appear at his February 5, 2009 court date,

the trial court was required to forfeit the bond and sign the judgments nisi. See Tex. Code Crim.

Proc. Ann. art. 22.01 (West 2009) (when defendant bound by bail to appear in court fails to do so,



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“a forfeiture of his bail and a judicial declaration of such forfeiture shall be taken”), 22.02 (West

2009) (if defendant does not appear, judgment shall be entered that State recover from sureties

amount in which they are bound and judgment will be made final unless good cause shown

for defendant’s failure to appear). The State’s subsequent filing of the judgments nisi with the trial

court conferred on it original jurisdiction to adjudicate the matter of enforcing the surety’s bond

obligation. See Safety Nat’l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex. Crim. App. 2008);

Burgemeister v. Anderson, 259 S.W. 1078, 1079 (Tex. 1924). The trial court had jurisdiction to

render the six judgments. Brown’s second appellate issue is overruled.

               In his third issue, Brown asserts that because his liability as surety had already been

adjudicated by the orders dated January 30, 2009, the final judgments rendered by the court in the

six bond foreiture cases “violate his protection from double jeopardy” or “the civil principles of

res judicata.” Because we have already concluded that the January 20, 2009 orders did not constitute

final adjudications of Brown’s liability on the bonds, res judicata principles are not implicated. See

Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992) (res judicata is generic term for

group of related concepts concerning conclusive effects given final judgments and prevents

relitigation of claims that have been finally adjudicated). For the same reason, assuming they would

even apply in a bond forfeiture proceeding, there has been no violation of any of the three protections

guaranteed by the Double Jeopardy Clause: (1) protection against a second prosecution for the same

offense after acquittal, (2) protection against a second prosecution for the same conviction, and

(3) protection against multiple punishments for the same offense. North Carolina v. Pearce,

395 U.S. 711, 717 (1969); see also Fant v. State, 931 S.W.2d 299, 309-10 (Tex. Crim. App. 1996)



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(forfeiture of defendant’s property pursuant to section 59 of code of criminal procedure is not

“punishment” and therefore does not implicate Double Jeopardy Clause). We overrule Brown’s

third appellate issue.

                In his fourth issue, Brown asserts that the judgments in the forfeiture proceedings

were “premature and served as a punishment imposed on the surety.” Brown has failed to cite any

authority or even explain why his characterization of the judgments as “punitive” would require

reversal. An appearance bond is a contract between the surety or bonding company and the State in

which the surety promises that the principal will appear in court on an appointed date in

exchange for the State’s agreement to release the principal from its custody. See 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). If the principal does not appear in court “at any time when

his personal appearance is required,” the surety’s bond shall be forfeited in accordance with the

procedures set forth in chapter 22 of the code of criminal procedure. See Tex. Code Crim. Proc.

Ann. art. 22.01. There is no dispute that Chenu failed to appear. Consequently, Brown was

contractually obligated to pay the State the full amount of each of the bonds, and the trial court’s

judgments awarding the full amount of each bond to the State are not “punitive,” unauthorized, or

improper. We overrule Brown’s fourth issue.


                                          CONCLUSION

                Having overruled Brown’s four appellate issues, we affirm the trial court’s judgments.




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                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: August 11, 2011




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