                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-07-00375-CR

DONALD H. WILLIS,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                          From the County Court at Law
                               Hill County, Texas
                            Trial Court No. M0769-06


                           MEMORANDUM OPINION


       A jury convicted Donald H. Willis of bail jumping and failure to appear, and the

court assessed his punishment at three days in jail and a $1,000 fine. Willis contends in

two issues that the evidence is legally and factually insufficient to sustain his conviction

because the State failed to prove that he had actual notice of the hearing at which he

failed to appear. We will affirm.

       Willis’s conviction arises from his failure to appear for an arraignment hearing in

a misdemeanor criminal mischief case. He posted a cash bond which required his
appearance “instanter.” The court coordinator sent him a letter dated May 10, 2006

notifying him of an arraignment hearing on June 21. Willis failed to appear on that

date, and when he appeared for a hearing in a different case on August 30, he was

arrested because of his failure to appear on June 21.

        Bail jumping and failure to appear1 is committed when a person lawfully

released from custody on condition that he subsequently appear intentionally or

knowingly fails to appear in accordance with the terms of his release. TEX. PEN.CODE

ANN. § 38.10(a) (Vernon 2003). Generally, an instanter bond gives adequate notice and

is sufficient to prove a defendant intentionally and knowingly failed to appear in

accordance with the terms of his release. Euziere v. State, 648 S.W.2d 700, 702 (Tex.

Crim. App. 1983); Bell v. State, 63 S.W.3d 529, 531 (Tex. App.—Texarkana 2001, pet.

ref’d). However, lack of actual notice is a “reasonable excuse” for a defendant’s failure

to appear and thus a defense to bail jumping. See TEX. PEN. CODE ANN. § 38.10(c)

(Vernon 2003); Richardson v. State, 699 S.W.2d 235, 238 (Tex. App.—Austin 1985, pet.

ref’d) (per curiam).

        Because lack of notice is a defense, once a defendant produces evidence that he

did not have actual notice, the State bears the burden of persuasion to disprove lack of

notice beyond a reasonable doubt or to prove beyond a reasonable doubt that the

defendant engaged in a course of conduct designed to prevent him from receiving

notice. See Bell, 63 S.W.3d at 531-32; Richardson, 699 S.W.2d at 238; cf. Saxton v. State, 804


1
       The caption for section 38.10 of the Penal Code labels this offense as “Bail Jumping and Failure to
Appear.” TEX. PEN. CODE ANN. § 38.10 (Vernon 2003). Hereinafter, we refer to the offense as “bail
jumping.”


Willis v. State                                                                                    Page 2
S.W.2d 910, 914 (Tex. Crim. App. 1991) (addressing prosecution’s burden of proof in

case involving self-defense claim); McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d) (same).      However, the State has no burden to

produce evidence directly refuting the defense.         Saxton, 804 S.W.2d at 914; accord

McClesky, 224 S.W.3d at 409.

         In reviewing a claim of legal insufficiency with regard to the rejection of a

defense, we do not look to whether the State has presented evidence refuting the

defense. Saxton, 804 S.W.2d at 914; accord Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.

App. 2003) (approving sufficiency analysis set forth in Saxton); McClesky, 224 S.W.3d at

409. Rather, we view all the evidence in a light most favorable to the verdict and

determine whether any rational trier of fact could have found the essential elements

beyond a reasonable doubt and also could have found against the defendant beyond a

reasonable doubt on the defense. Saxton, 804 S.W.2d at 914; Dotson v. State, 146 S.W.3d

285, 291 (Tex. App.—Fort Worth 2004, pet. ref’d).

        In reviewing a claim of factual insufficiency with regard to the rejection of a

defense, we review all of the evidence in a neutral light and ask whether the State’s

evidence taken alone is too weak to support the finding and whether the proof of guilt,

although adequate if taken alone, is against the great weight and preponderance of the

evidence. Zuliani, 97 S.W.3d at 595; Dotson, 146 S.W.3d at 291-92.

        Here, Willis’s bond was an instanter bond, but he testified that he never received

the court coordinator’s notice of the June 21 arraignment hearing. Thus, he contends

that the evidence is legally and factually insufficient to support the jury’s rejection of his


Willis v. State                                                                         Page 3
defense.     He argues that his case is similar to Richardson, in which the defendant

likewise testified that he did not receive notice of the hearing for which he failed to

appear. See Richardson, 699 S.W.2d at 237. There, the court held that, because the court

coordinator had mailed notice to Richardson’s bondsman instead of to Richardson,

because the bondsman testified that he never received such notice, and because

Richardson himself testified that the never received notice, the evidence was legally

insufficient to establish that Richardson intentionally or knowingly failed to appear for

the hearing. Id. at 237-38.

        However, Willis’s case is different. Here, the court coordinator testified that a

letter was mailed to Willis giving him notice of the hearing. A copy of the letter was

admitted. To her knowledge, the letter was never returned by the postal service.

        Willis concedes that the letter bears the correct address. He testified that his

girlfriend and he are the only ones who check his mail. He stated that he never received

the court coordinator’s letter, though he has received other mail from her about his case,

and that he has had some problems with not receiving “routine mail” such as his water

bill on several occasions. Willis’s girlfriend likewise testified that the notice letter was

not in the mail on any of the occasions when she retrieved the mail from his mailbox.

        The facts of Willis’s case are similar to those presented in Burns v. State, 958

S.W.2d 483 (Tex. App.—Houston [14th Dist.] 1997, no pet.). There, a bondsman mailed

notice to the defendant, which was never returned. Id. at 488. The court held that this

was legally sufficient evidence to prove that the defendant intentionally and knowingly

failed to appear. Id. Willis’s case is different than Burns to the extent that Willis (unlike


Willis v. State                                                                        Page 4
Burns) offered evidence that he did not receive notice. However, the jury was free to

accept or reject this evidence. See Hill v. State, 760 S.W.2d 369, 370 (Tex. App.—Austin

1988, no pet.) (“trial judge was free to accept or reject Hill’s testimony” explaining why

he failed to appear); see also Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App.

1994) (“the jury, as the sole judge of the weight and credibility of the evidence, was free

to accept or reject any or all of the evidence of either the State or the defense, even if that

evidence was uncontradicted”); Lee v. State, 259 S.W.3d 785, 791 (Tex. App.—Houston

[1st Dist.] 2007, pet. ref’d) (jury “is free to accept or reject” defensive issue).

        Viewing the evidence in the light most favorable to the verdict, a rational trier of

fact could have found the essential elements of bail jumping beyond a reasonable doubt

and also could have found against Willis beyond a reasonable doubt on the defense of

lack of notice. Accordingly, the evidence is legally sufficient, and Willis’s first issue is

overruled.

        Regarding the factual sufficiency of the evidence, the primary difference from

our legal sufficiency analysis is the light in which we view the evidence. However, the

mere existence of conflicting testimony, as here, does not render the evidence factually

insufficient. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); Lee, 259

S.W.3d at 792. And again, the jury is free to accept or reject any or all of either the

State’s or the defendant’s evidence because resolution of conflicts lies within the

exclusive province of the jury. Lee, 259 S.W.3d at 792; see Vasquez v. State, 67 S.W.3d 229,

236 (Tex. Crim. App. 2002); Lockwood v. State, 237 S.W.3d 428, 433 (Tex. App.—Waco

2007, no pet.).


Willis v. State                                                                          Page 5
        Viewing the evidence in a neutral light, it was within the jury’s province to

accept the State’s evidence that notice was sent to Willis and to reject Willis’s evidence

that he did not receive notice. Accordingly, the evidence is factually sufficient, and we

overrule Willis’s second issue.

        We affirm the judgment.



                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
Affirmed
Opinion delivered and filed December 23, 2008
Do not publish
[CR25]




Willis v. State                                                                     Page 6
