                                                                                     ACCEPTED
                                                                                 13 14-00645-CR
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                            7/9/2015 10:32:07 AM
                                                                          CECILE FOY GSANGER
                                                                                          CLERK

                      CAUSE NO. 13-14-00645-CR

                                                 FILED IN
                                         13th COURT OF APPEALS
                  IN THE COURT OF APPEALS
                                      CORPUS CHRISTI/EDINBURG, TEXAS
                                          7/9/2015 10:32:07 AM
            THIRTEENTH JUDICIAL DISTRICT OF   TEXAS
                                           CECILE  FOY GSANGER
                                                  Clerk

                CORPUS CHRISTI - EDINBURG, TEXAS


   WILLIAMSBURG NATIONAL INSURANCE COMPANY D/B/A EL
                 PADRINO BAIL BONDS,
                       Appellant

                                 v.

                          STATE OF TEXAS,
                              Appellee.


          On appeal from the COUNTY COURT AT LAW NO. 3
                       of Cameron County, Texas
              Trial Court Cause Number 2013-CCL-1381-C


                     STATE’S APPELLATE BRIEF


                               Luis V. Saenz
                               Cameron County District Attorney
Oral Argument Requested
                               Rachel Multer Michalewicz
                               Assistant District Attorney
                               964 East Harrison Street, 4th Floor
                               Brownsville, Texas 78520
                               Phone: (956) 544-0849
                               Fax: (956) 544-0869
                               Attorneys for the State of Texas
                                           TABLE OF CONTENTS

Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iii

Salutation.................................................................................................................... 1

Statement of Facts ...................................................................................................... 2

State’s Request for New Trial .................................................................................... 2

Summary of the Argument......................................................................................... 3

Argument and Authorities.......................................................................................... 4

         State’s Response to Appellant’s First Issue..................................................... 4

         State’s Response to Appellant’s Second Issue ................................................ 6

         State’s Response to Appellant’s Third Issue ................................................. 11

         State’s Response to Appellant’s Fourth Issue ............................................... 19

Prayer ....................................................................................................................... 22

Certificate of Compliance ........................................................................................ 23

Certificate of Service ............................................................................................... 24




 

                                                              ii 
                                         INDEX OF AUTHORITIES


Cases

Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235                                                (Tex. 2007)

    ....................................................................................................................... 14, 18

Campbell Ins. Agency v. Commercial Standard Ins. Co., 502 S.W.2d 232, 236

    (Tex. Civ. App.—Fort Worth 1973, writ ref'd n.r.e.) .............................................7

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995)...........................17

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) ....17

Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976) .....................................9

Deckard v. State, 615 S.W.2d 717, 718 (Tex. Crim. App. 1981) ............... 16, 17, 20

Escobar v. State, 587 S.W.2d 714, 716 (Tex. Crim. App. 1979) ..................... 12, 16

Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) .......................................................9

Farmer v. Ben E. Keith Co., 919 S.W.2d 171, 175 (Tex. App.—Fort Worth 1996,

    no writ)..................................................................................................................17

Fisher v. State, 832 S.W.2d 641, 643 (Tex. App.—Corpus Christi 1992, pet. ref’d)

    ..............................................................................................................................17

Freightliner Corp. v. Motor Vehicle Bd. of Texas Dep't of Transp., 255 S.W.3d

    356, 363 (Tex. App.—Austin 2008, pet. denied) .................................................10
 

                                                               iii 
Gardner v. Martin, 162 Tex. 156, 158, 345 S.W.2d 274, 276 (1Tex. 961) ............13

Guyot v. Guyot, 3 S.W.3d 243, 246-47 (Tex. App.—Fort Worth 1999, pet. dism’d)

    ................................................................................................................................9

Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540, 545 (Tex. 1971) ..................18

Hokr v. State, 545 S.W.2d 463, 465 (Tex. Crim. App. 1977) .................................20

In re C.S., 208 S.W.3d 77, 81 (Tex. App.—Fort Worth 2006, pet. denied) ............13

In re Kimball Hill Homes Texas, Inc., 969 S.W.2d 522, 527 (Tex. App.—Houston

    [14th Dist.] 1998, orig. proceeding) ...................................................................6, 8

Juarez v. State, No. 06-14-00052-CR, 2015 WL 1325531, at *10 (Tex. App.—

    Texarkana Mar. 24, 2015, no pet.) ......................................................................15

Lozano v. State, 359 S.W.3d 790, 818 (Tex. App.–Fort Worth 2012, pet. ref'd) ....14

Lumbermens Mut. Cas. Co. v. Garza, 777 S.W.2d 198, 199 (Tex.App.—Fort

    Worth 1989, no writ) ..............................................................................................8

Martin v. Dosohs I, Ltd., Inc., 2 S.W.3d 350, 354 (Tex. App.—San Antonio 1999,

    pet. denied) .............................................................................................................6

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985) .........................16

Smith v. State, 566 S.W.2d 638, 640 (Tex. Crim. App. 1978) ......................... 12, 21

Soileau v. State, No. 14-02-01303-CR, 2004 WL 78176, at *5 (Tex. App.—

    Houston [14th Dist.] Jan. 20, 2004, no pet.) (mem. op., not designated for
 

                                                               iv 
    publication) ...........................................................................................................13

Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985) .......................................................6

Wheeler v. Employers Mut. Liab. Ins. Co. of Wisconsin, 609 S.W.2d 826, 828 (Tex.

    Civ. App.—Tyler 1980, no writ) ............................................................................ 7

Statutes

Code Crim. Proc. Ann. Art. 22.05 (2015)......................................................... 12, 21

Rules

Tex. R. App. P. 33.1.......................................................................................... 14, 18

Tex. R. Civ. P. 166a(c).............................................................................................17

Tex. R. Civ. P. 174. (2015) ........................................................................................4

Tex. R. Evid. 103 .............................................................................................. 14, 18

Tex. R. Evid. 803(8).................................................................................................14




 

                                                             v 
                         CAUSE NO. 13-14-00645-CR
                    ____________________________________

                         IN THE COURT OF APPEALS

                 THIRTEENTH JUDICIAL DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG, TEXAS
                   ____________________________________

     WILLIAMSBURG NATIONAL INSURANCE COMPANY D/B/A EL
                   PADRINO BAIL BONDS,
                         Appellant

                                          v.

                             STATE OF TEXAS,
                                  Appellee
                    ____________________________________

                        STATE’S APPELLATE BRIEF
                    ____________________________________

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellee, the STATE OF TEXAS, by and through the Cameron

County District Attorney, the Honorable Luis V. Saenz, and, pursuant to Rule 38.2

of the Texas Rules of Appellate Procedure, files this, its Appellate Brief in the

above-styled and -numbered cause of action, and in support thereof, would show

this Honorable Court as follows:




State’s Brief                                                                       Page 1 
                          STATEMENT OF THE FACTS

        The current appeal arose from a bond forfeiture case. In such cases, a bail

bond company bonds out an individual, guaranteeing the individual’s appearance

in court. When a criminal defendant fails to appear in court, the State requests the

issuance of a judgment nisi. The judgment nisi forms the State’s petition for the

defendant’s bond to be forfeited to the State. The resulting proceeding is quasi

criminal/civil, with civil law being used in a criminal case.

        The Trial Court heard arguments on several cases in two joint hearings. Of

these cases, only two are on appeal: No. 2013-CCL-1381 and No. 2012-CCL-1400.

However, 2013-CCL-732 will be referenced throughout the State’s Brief because

an explanatory brief was filed in only one case at the trail court’s request. All other

motions, including the State’s Motion for Final Traditional Summary Judgment

and Motion for Final No Evidence Summary Judgment, were to be filed in each

individual case.

                     STATE’S REQUEST FOR NEW TRIAL

        Due to an unintentional omission by the State, the State’s Motion for Final

Traditional Summary Judgment and Motion for Final No Evidence Summary

Judgment was not filed in this case, No. 2013-CCL-1381. Despite Appellant’s

failure to raise this issue as grounds for reversal, the State recognizes this may be

State’s Brief                                                                     Page 2 
reversible error and in the interest of justice, asks that this Court consider whether

this warrants reversal of the judgment and remand for a new trial on the merits,

notwithstanding the issues presented. All other arguments are presented

unchanged.

                           SUMMARY OF ARGUMENT

        Appellant raises four issues on appeal. In his first issue, Appellant

complains that the trial court erred in consolidating the cases. The State responds

by asserting that the cases were never consolidated. In his second issue, Appellant

complains that the trial court erred in allowing abated cases to proceed. The State

responds by asserting that the trial court never intended an abatement, any such

order cannot be enforced due to vagueness, and Defendant Surety failed to timely

object. In his third issue, Appellant complains that the trial court abused its

discretion by not obtaining proof of citation in compliance with Art. 22.05 of the

Texas Code of Criminal Procedure, that proper Summary Judgment procedure was

not followed, and oral evidence was allowed in at the hearing for the motion of

Summary Judgment. The State responds by asserting that evidence was presented

showing that Art.22.05 was complied with, the State followed correct Summary

Judgment procedure, and no oral evidence was allowed in the hearing. Finally, in

his fourth issue, Appellant complains that the trial court erred in granting the

State’s Brief                                                                      Page 3 
State’s default judgment without regard to evidence of citation or regard to the

finality of judgments. The State responds by asserting that evidence was presented

showing that Art.22.05 was complied with and summary judgment was final and

appealable.



                          ARGUMENT & AUTHORITIES

State’s Response to Appellant’s First Issue

        In his first issue, Appellant complains that the trial court erred in

consolidating the cases. The State responds by asserting that the cases were never

consolidated.

        Rule 174(a) of the Texas Rules of Civil Procedure controls consolidation of

trials. In full it states “[w]hen actions involving a common question of law or fact

are pending before the court, it may order a joint hearing or trial of any or all the

matters in issue in the actions; it may order all the actions consolidated; and it may

make such orders concerning proceedings therein as may tend to avoid

unnecessary costs or delay.” Tex. R. Civ. P. 174. (2015).

        Here, the court did not order a consolidation. There was no written order or

oral order of consolidation. The word consolidate is only mentioned once: by

Defendant Surety when discussing the joint liability between Defendant Surety and

State’s Brief                                                                     Page 4 
Defendant Principal (R. R. Vol. 2, p. 16, l. 21). On the basis of these facts, it

cannot be said that there was an order of consolidation.

        In the present case, all facts point to the trial court having a joint hearing of

the legal issues in all four cases, due to the common question of law. Defendant

Surety represented to the trial court that all four cases relied on the same motions,

responses, and arguments (R. R. Vol. 2, p. 5, l. 5-7, 13-16). Based on this

representation that the four cases were the same, the court in the interest of judicial

economy and efficiency chose to hear arguments in only one case (R. R. Vol. 2, p.

5, l. 17-19). The trial court would then apply the reasoning to each case (R. R.

Vol. 2, p. 5, l. 17-19).

        Throughout the August 5, 2014 hearing, Defendant Surety relied only on

legal arguments and never discussed the facts of any particular case. (R. R. Vol. 2,

p. 18, l. 22-23). For that reason, the trial court requested a brief be filed in only

one case with the intention that it would apply to all four cases. (R. R. Vol. 2, p.

22, l. 16-23). Additionally, the trial court, the State, and Defendant Surety viewed

the cases as being four distinct cases. (R. R. Vol. 2, p. 24, l. 11-15).

        The September 23, 2014 hearing was the first time Defendant Surety argued

the individual facts of a case. (R. R. Vol. 3, p. 27-28, l. 25-3). There, Defendant

Surety stated that in one case Defendant Principal was apprehended. (R. R. Vol. 3,

State’s Brief                                                                        Page 5 
p. 28, l. 5-7). For that reason, the State later non-suited 2013-CCL-00864. While

Defendant Surety acknowledged the facts of No. 2013-CCL-00864 had changed,

they reiterated that the other cases remained the same. (R. R. Vol. 3, p. 27-28, l.

25-3).

         Accordingly, Appellant’s first issue should be overruled.



State’s Response to Appellant’s Second Issue

         In his second issue, Appellant complains that the trial court erred in allowing

abated cases to proceed. The State responds by asserting several arguments.

A.       Introduction

         An abatement is suspension or cessation of all proceedings in a suit. In re

Kimball Hill Homes Texas, Inc., 969 S.W.2d 522, 527 (Tex. App.—Houston [14th

Dist.] 1998, orig. proceeding) [hereinafter In re Kimball]. An order of abatement

is for the purpose of allowing a reasonable amount of time to cure the defect or

impediment to proceeding. Martin v. Dosohs I, Ltd., Inc., 2 S.W.3d 350, 354 (Tex.

App.—San Antonio 1999, pet. denied). By abating, the court gives the parties an

opportunity to cure the defect. Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985).

Generally, an abatement will be brought by the defendant in a motion or in a plea

for abatement. Martin, 2 S.W.3d at 353. Two appellate courts have held that the

State’s Brief                                                                     Page 6 
court on its own motion can abate a proceeding. See Campbell Ins. Agency v.

Commercial Standard Ins. Co., 502 S.W.2d 232, 236 (Tex. Civ. App.—Fort Worth

1973, writ ref'd n.r.e.); Wheeler v. Employers Mut. Liab. Ins. Co. of Wisconsin, 609

S.W.2d 826, 828 (Tex. Civ. App.—Tyler 1980, no writ).

B.      The Trial Court Did Not Intend to Abate Proceedings

        Here, there was no abatement of the case on appeal because the trial court

never intended to suspend the other cases. The trial court’s intent was for the four

cases to be “carried together” and reset together, despite stating there was to be an

abatement. (R. R. Vol. 2, p. 25, l. 2-5; p. 5, l. 17-9; p. 23, l. 1-4). As previously

mentioned, four cases were set before the trial court. All four cases relied on

identical legal arguments (R. R. Vol. 2, p. 5, l. 5-7, 13-6; p. 18, l. 19-20). The

court requested that both Appellant and the State brief the legal issues (R. R. Vol.

2, p. 21, l. 12-4). For judicial economy, the court requested that the brief be filed

in only one case, but the decision would affect all four cases (R. R. Vol. 2, p. 22, l.

16-8; p. 5, l. 17-9; p. 25, l. 2-5). Appellant later filed the brief on No. 2013-CCL-

00732 (R. R. Vol. 3, p. 6-7, l. 25-1). Despite the trial court stating that the other

three cases would be ‘abated’ until arguments were heard on No. 2013-CCL-

00732, the court intended to resolve all cases at the same time (R. R. Vol. 2, p. 23,

l. 1-4). This is evidenced by the court stating that “these cases will be carried

State’s Brief                                                                        Page 7 
together” and the court administrator resetting all four cases for the same date. (R.

R. Vol. 2, p. 25, l. 2-5; p. 25, l. 6-7). Further, no defect was alleged when ordering

the abatement. As an abatement is for the purpose of fixing defects, the court’s

failure to specify the defect in need of cure implies that the court meant to merely

reset the other cases. This is further evidenced by the court allowing State to

amend summary judgment motion after declaring an abatement. (R. R. Vol. 2, p.

23-4, l. 24-7; p. 25-26, l. 17-4). Despite the trial court stating there was to be an

abatement, under the totality of the circumstances it is cannot be said that the trial

court actually ordered an abatement, thereby suspending the other three cases. For

this reason there was never an order of abatement, and the State’s motion is not

void.

C.      The Abatement Order Cannot be Enforced Due to Vagueness

        If this Court finds that despite the trial court’s intent, the other cases were

abated, the State’s motion would still be valid because the Court’s order, being

oral, lacked clear terms. While an abatement generally prevents the trial court and

parties from proceeding until the case has been revived, the trial court and the

parties may proceed on matters specified in the abatement order. Lumbermens Mut.

Cas. Co. v. Garza, 777 S.W.2d 198, 199 (Tex.App.—Fort Worth 1989, no writ); In

re Kimball, 969 S.W.2d at 527. Here, the order of abatement was orally

State’s Brief                                                                        Page 8 
pronounced in court. The oral order was never reduced to writing. The notation

on the case summary sheet is not a written order because it “is a memorandum

made for the clerk's and trial court's convenience.” Guyot v. Guyot, 3 S.W.3d 243,

246-47 (Tex. App.—Fort Worth 1999, pet. dism’d).

        There is no relevant case law discussing the interpretation of vague oral

orders. However, guidance can be drawn from other cases. The Texas Supreme

Court stated that “for a person to be held in contempt for disobeying a court

decree, the decree must spell out the details of compliance in clear, specific and

unambiguous terms so that such person will readily know exactly what duties or

obligations are imposed upon him.” Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.

1967). While Slavin concerned holding a person in contempt for disobeying an

oral order, the requirement of specific and unambiguous terms can easily be

applied to any situation where parties will rely on an oral order. This is not an

unreasonable method of interpretation, considering it is what is required when a

written judgment is ambiguous. When a judgment is ambiguous, the entire content

of the judgment and the record should be considered. See Constance v. Constance,

544 S.W.2d 659, 660 (Tex. 1976). Specifically, if the “judgment is susceptible to

more than one interpretation, the one that renders the judgment more reasonable,

effective, and conclusive, and that harmonizes it with the facts and the law of the

State’s Brief                                                                       Page 9 
case, should be adopted.” Freightliner Corp. v. Motor Vehicle Bd. of Texas Dep't

of Transp., 255 S.W.3d 356, 363 (Tex. App.—Austin 2008, pet. denied).

        The oral order of abatement was ambiguous because the record as a whole

contradicts the abatement. A short time after ordering an abatement, the trial court

stated that “these cases will be carried together,” prompting the court administrator

to reset all cases for the same date. (R. R. Vol. 2, p. 25, l. 4-7). Further, the court

told the State that if they could amend the summary judgment motion, they were

allowed to do so. (R. R. Vol. 2, p. 23-4, l. 24-7; p. 25-26, l. 17-4). The trial court

specifically stated that the State could file new motions addressing the issue. (R. R.

Vol. 2, p. 26, l. 21-3).

        The order is further ambiguous because an order of abatement is typically

issued to allow a plaintiff to cure a defect. When the trial court ordered an

abatement, no defect was alleged. (R. R. Vol. 2, p. 23, l. 1-4). However, when

viewing the record as a whole, a potential defect emerges. On the August 5, 2014

hearing, Defendant Surety complained that it was improper to have a combined

motion for default judgment and summary judgment. (R. R. Vol. 2, p. 16, l. 3-24).

The motion for traditional summary judgment and final no evidence summary

judgment filed by the State, of which Appellant objects to, was filed in response to

Defendant Surety’s complaint. (R. R. Vol. 3, p. 7, l. 24-25). Construing the

State’s Brief                                                                     Page 10 
abatement order in the present case to allow the motion is in line with the purpose

of correcting defects through an abatement order, a fact which even Appellant

recognizes.

D.      Appellant’s Second Issue is Waived Due to Failure to Timely Object

        Appellant is estopped from arguing the abatement made the filing of the

motion void because the Appellant at the trial court failed to object. After ordering

the abatement, the State argued that they would amend the combined motion for

default judgment and summary judgment. (R. R. Vol. 2, p. 26, l. 5-23). During

that exchange, Defendant Surety failed to object. (R. R. Vol. 2, p. 26, l. 5-23). The

Defendant Surety also failed to object on the grounds of the abatement in the

hearing on September 23, 2014. In the amended original answer filed September

16, 2014, Defendant Surety made no objection to the State’s motion for traditional

summary judgment and final no evidence summary judgment. For this reason,

Appellant should be estopped from arguing that an actual abatement was granted.  

Accordingly, Appellant’s second issue should be overruled.



State’s Response to Appellant’s Third Issue

        In his third issue, Appellant complains that the trial court abused its

discretion by not obtaining proof of citation in compliance with Art. 22.05 of the

State’s Brief                                                                     Page 11 
Texas Code of Criminal Procedure, that proper Summary Judgment procedure was

not followed, and oral evidence was allowed in at the hearing for the motion of

Summary Judgment. The State responds by asserting the following arguments.

A. Service in Bonds

              Article 22.05 requires notice to be sent to Defendant Principal if he provided

his address on the bond. The notice must be sent by United States mail to the

address shown on the bond or Defendant Principal’s last known address. Code

Crim. Proc. Ann. Art. 22.05 (2015). Failure to actually serve Defendant Principal

is immaterial because “[f]ormal service of citation on the principal is clearly not

required nor contemplated by Art. 22.05.” Smith v. State, 566 S.W.2d 638, 640

(Tex. Crim. App. 1978). Where the record is silent, there is a rebuttable

presumption in favor of the State that Art. 22.05 was complied with. Escobar v.

State, 587 S.W.2d 714, 716 (Tex. Crim. App. 1979).

              Here, the record was not silent regarding service of Defendant Principal.

The State presented a certified copy of the case summary sheet showing citation

was prepared and issued. (C. R. p. 63). The State asked that the trial court take

judicial notice of all documents in the four cases, allowing the court to consider the

whole of the Clerk’s Record.1 See In re C.S., 208 S.W.3d 77, 81 (Tex. App.—Fort

                                                            
1 The State asked the trial court to take judicial notice during a joint hearing of all four cases.
The Defendant Surety failed to object during the hearing and although briefly complaining about
State’s Brief                                                                               Page 12 
Worth 2006, pet. denied) (explaining that “[i]t is appropriate for a court to take

judicial notice of a file in order to show that the documents in the file are a part of

the court's files, that they were filed with the court on a certain date, and that they

were before the court at the time of the hearing.”).

              At least one Appellate Court has upheld summary judgment on a bond

forfeiture where proof of citation relied on a notation by a clerk. In an unreported

memorandum opinion, the 14th District Court of Appeals was faced with a

Defendant Surety who argued that the summary judgment standard required the

trial court to conclude that Art. 22.05 was not met even though there was “a

notation indicating a deputy clerk deposited the citation in the United States mail.”

Soileau v. State, No. 14-02-01303-CR, 2004 WL 78176, at *5 (Tex. App.—

Houston [14th Dist.] Jan. 20, 2004, no pet.) (mem. op., not designated for

publication). The court held that “[i]f a silent record will support a presumption of

compliance with article 22.05, the record in the present case clearly supports the

presumption.” Id. (referencing the Escobar presumption). Likewise, the certified

copy of the case summary sheet showing citation in compliance with Art. 22.05

fulfills the State’s requirement beyond that required by Escobar.

                                                                                                                                                                                                
this on appeal, has failed to argue that it is grounds for reversion. Further, “[i]t is well recognized
that a trial court may take judicial notice of its own records in a cause involving the same subject
matter between the same, or practically the same, parties.” Gardner v. Martin, 162 Tex. 156,
158, 345 S.W.2d 274, 276 (1961) (emphasis added).
State’s Brief                                                                                                                                                                   Page 13 
        Appellant argues that the certified copy of the case summary sheet contained

hearsay and was improperly admitted into evidence. However, the record contains

no formal objection and no ruling on the issue by the court. (R. R. Vol. 2, p. 10, l.

9-19). Error must be preserved by the opponent making a “timely, specific

objection and obtain[ing] a ruling.” Tex. R. App. P. 33.1; Tex. R. Evid. 103; Bay

Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007). As a

result, Appellant cannot raise this issue on appeal because the objection was not

properly preserved.

        Even if Appellant properly preserved the objection, the case summary sheet

falls under an exception to hearsay. Rule 803(8) excepts public records when the

record sets out the office’s activities or a matter observed while under a legal duty

to report, where other circumstances indicate a lack of trustworthiness. Tex. R.

Evid. 803(8). Here, the case summary sheet set out the County Clerk’s activities

with regard to the case by noting that they sent via notice to defendant principal via

certified mail.

        Further, “[r]ule 803(8) presumes admissibility, and the party opposing the

report's admission must prove the report's untrustworthiness.” Lozano v. State, 359

S.W.3d 790, 818 (Tex. App.–Fort Worth 2012, pet. ref'd).” The rationale is that

“documents recording routine, objective observations, made as part of the

State’s Brief                                                                   Page 14 
everyday function of the preparing official or agency” contains “ministerial,

objective observations of an unambiguous factual nature” and are therefore

inherently reliable. Juarez v. State, No. 06-14-00052-CR, 2015 WL 1325531, at

*10 (Tex. App.—Texarkana Mar. 24, 2015, no pet.) (quoting Cole v. State, 839

S.W.2d 798, 804, 810 (Tex. Crim. App. 1990) (op. on reh’g) (per curiam); Tanner

v. State, 875 S.W.2d 8, 9 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd)).

Although during the hearing the Defendant Surety argued that the notations were

untrustworthy, they offered no proof to refute the other evidence in the Clerk’s

Record, as addressed in the following paragraph. (R. R. Vol. 2, p. 10, l. 8-14). As

the certified copy of the case summary sheet fits into this exception and Defendant

Surety has failed to prove the record’s untrustworthiness, the case summary sheet

is not hearsay.

        In addition to the case summary sheet, other evidence exists in the Clerk’s

Record which shows that citation was sent in compliance with Article 22.05. The

Clerk’s Record shows that service and other documents were sent by mail and

returned on November 26, 2012, February 26, 2013, November 04, 2013, May 20,

2014, June 16, 2014, September 12, 2014, and October 22, 2014, (C. R. p. 31-41;

44-45; 72-75; 113-114; 131-134; 152-153; 158-161). All were sent to Defendant

Principal’s address stated on the bond, in compliance with Art. 22.05. As

State’s Brief                                                                   Page 15 
previously mentioned, the State asked the trial court to take judicial notice of all

documents in the court’s file, which allowed the court to consider the evidence.2

When the record is sworn to as correct by the Clerk, as here, “[a]bsent other

evidence,” the record is assumed correct. Escobar, 587 S.W.2d at 716. Further,

Appellant relies on the Clerk’s Record as a whole, thereby waiving any objection

as to the accuracy of the documents contained therein.

B. Summary Judgment

              When moving for summary judgment in a bond forfeiture case, “the State

had the burden of establishing as a matter of law that there are no genuine issues of

material fact as to any of the essential elements of the State's cause of action, and

that it is entitled to judgment as a matter of law.” Deckard v. State, 615 S.W.2d

717, 718 (Tex. Crim. App. 1981) (quoting Gibbs v. General Motors Corp., 450

S.W.2d 827 (Tex. 1970)). The court must view the evidence in the light most

favorable to the nonmovant. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

549 (Tex. 1985). The essential elements of the State's cause of action in a bond



                                                            
2 The State asked the trial court to take judicial notice during a joint hearing of all four cases.
The State asserts that this meets our requirement of proving up all four cases. The Defendant
Surety failed to object during the hearing. Further, Defendant Surety, although briefly
complaining about this on appeal, has failed to state the right to a new trial for this reason. Error
must be preserved by the opponent making a “timely, specific objection and obtain[ing] a
ruling.” Tex. R. App. P. 33.1; Tex. R. Evid. 103; Bay Area Healthcare Grp., Ltd. v. McShane,
239 S.W.3d 231, 235 (Tex. 2007).
State’s Brief                                                                                 Page 16 
forfeiture proceeding are the bond and the judgment nisi. Deckard, 615 S.W.2d at

718.

        Here, the State moved for summary judgment with regards to both

Defendant Principal and Defendant Surety. (C. R. p. 142-150). Once the State

established the right to summary judgment with clear and direct evidence that

could be easily controverted, the burden shifted to the Defendant Surety to show

that an issue of material fact exists. Tex. R. Civ. P. 166a(c); Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Farmer v. Ben E. Keith Co., 919

S.W.2d 171, 175 (Tex. App.—Fort Worth 1996, no writ). The non-movant must

respond unless the summary judgment motion is insufficient as a matter of law.

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

        The State’s failure to attach the evidence discussed above to the summary

judgment motion is not fatal. The Texas Court of Criminal Appeals has held that

“[t]he State is not required to attach copies of the judgment nisi or the appearance

bond to the motion for summary judgment, since those documents are part of the

trial court's record in the case.” Fisher v. State, 832 S.W.2d 641, 643 (Tex. App.—

Corpus Christi 1992, pet. ref’d) (quoting Escobar, 587 S.W.2d at 716). Central to

this decision is that the “record is sworn to as correct by the deputy district court




State’s Brief                                                                    Page 17 
clerk.” Escobar, 587 S.W.2d at 716. Likewise, proof of service can be relied on by

the trial court when it is in the court’s own record.

              The Defendant Surety failed to produce any evidence or even controvert the

State’s evidence. The Defendant’s Objection and Response to the State of Texas’

Motion for Final Traditional and No Evidence Summary Judgment3 did not

reference any evidence in the record or contain any attached evidence. A pleading

alone, even when sworn, cannot form the basis of summary judgment evidence.

Hidalgo v. Sur. Sav. & Loan Ass'n, 462 S.W.2d 540, 545 (Tex. 1971). Therefore,

Defendant Surety’s unsworn response was not enough to defeat the State’s Motion

for Summary Judgment. Further, the prior filed special exceptions which

Defendant Surety relies on cannot controvert the State’s Motion for Summary

Judgment. Defendant Surety failed to urge his objections and obtain a ruling.

Therefore, any allegations made have not survived for appellate review. See Tex.

R. App. P. 33.1; Tex. R. Evid. 103; Bay Area Healthcare Grp., Ltd., 239 S.W.3d

at 235.

C. Oral Testimony

              Rule 166a(c) prohibits the introduction of oral testimony at summary

judgment hearings. However, no oral testimony was provided at either hearing.

                                                            
3 Filed only on No.2013-CCL-732. Defendant Surety has waived his Special Exceptions by
failing to obtain a ruling on the objections.
State’s Brief                                                                        Page 18 
No witnesses were called and no factual statements from witnesses were

introduced as evidence. Therefore, the trial court did not permit a violation of Rule

166a(c) as only arguments were presented. (R. R. Vol. 2, p. 18, l. 19-20).

        Accordingly, Appellant’s third issue should be overruled.



State’s Response to Appellant’s Fourth Issue

        In his fourth issue, Appellant complains that the trial court erred in granting

the State’s default judgment without regard to evidence of citation or regard to the

finality of judgments. The State’s response is as follows.

A. There was No Default Judgment

        In Defendant Surety’s Brief, the Defendant Surety argues that the State did

not meet the burden for requesting default judgments. While the State did pursue a

partial default judgment against Defendant Principal, this motion was later

abandoned in favor of a motion for summary judgment as to both Defendant Surety

and Defendant Principal. (C. R. p. 115-129; 142-150; R. R. Vol. 3, p. 7, l. 24-25).

The partial default motion was defective as a default judgment against Defendant

Principal and a summary judgment against Defendant Surety would not meet the

requirement that the Defendant Principal and Defendant Surety be jointly and

severally liable. (R. R. Vol. 3, p. 9, l. 16-25). As a result, the State abandoned that


State’s Brief                                                                    Page 19 
motion and pursued the joint summary judgment motion. The trial court granted

the summary judgment motion, leaving Defendant Surety’s arguments concerning

default judgments without merit. (C. R. p. 157).


B. Requirements of Summary Judgment Were Met


        When moving for summary judgment in a bond forfeiture, “the State had the

burden of establishing as a matter of law that there are no genuine issues of

material fact as to any of the essential elements of the State's cause of action, and

that it is entitled to judgment as a matter of law. Deckard v. State, 615 S.W.2d at

718 (quoting Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex. 1970)). The

necessary elements are “the bond and the judgment nisi.” Id.


        To make a judgment final against the Defendant Surety, the judgment nisi

and the bond must be presented. The burden then shifts to the Defendant Surety

and Defendant Principal to show good cause why the Defendant Principal did not

appear. See Hokr v. State, 545 S.W.2d 463, 465 (Tex. Crim. App. 1977) (“A

judgment nisi will be made final unless good cause is shown why the accused did

not appear”). The essential elements in a bond forfeiture proceeding are the bond

and the judgment nisi. Deckard, 615 S.W.2d at 718. This holds true even in a

motion for summary judgment. See id. Attached to the State’s motion for


State’s Brief                                                                    Page 20 
summary judgment was the bond contract and the judgment nisi, which fulfilled

what is required of the State by law. (C. R. p. 142-150). At both hearings,

Defendant Surety failed to give good cause for Defendant Principal’s failure to

appear. Therefore, the judgment is final.


C. Notice was Sent in Compliance with Art. 22.05


        As previously discussed, Article 22.05 requires notice to be sent in the

United States mail to Defendant Principal on the address provided on the bond.

Failure to actually serve Defendant Principal is immaterial because “[f]ormal

service of citation on the principal is clearly not required nor contemplated by Art.

22.05.” Smith, 566 S.W.2d at 640. Article 22.05 requires that notice to Defendant

Surety be sent “in the manner required in civil actions.” Code Crim. Proc. Ann. art

22.05 (2015). Accordingly, in a motion for summary judgment, citation to

Defendant Surety must be sent in the manner required by Rule 166a(c). If the

legislative intent was to require citation to the Defendant Principal in the same

manner, Article 22.05 would have provided such.


        Accordingly, Appellant’s fourth issue should be overruled.




State’s Brief                                                                      Page 21 
                                        PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that this

Court will remand for new trial on the merits without reference to the issues.

Otherwise, the State of Texas asks that this Court will overrule Appellant’s issues

on appeal, and affirm the forfeiture.




State’s Brief                                                                    Page 22 
                                                           Respectfully Submitted,

                                                                LUIS V. SAENZ
                                               Cameron County District Attorney
                                                964 East Harrison Street, 4th Floor
                                                       Brownsville, Texas 78520
                                                           Phone: (956) 544-0849
                                                              Fax: (956) 544-0869



                                                By:  /s/ Rachel Multer Michalewicz
                                                       Rachel Multer Michalewicz
                                                          Assistant District Attorney
                                                            State Bar No. 24092831
                                             Rachel.Michalewicz@co.cameron.tx.us

                                                   Attorneys for the State of Texas




                      CERTIFICATE OF COMPLIANCE

I certify that this document contains 5,002 words (excluding the cover, table of
contents, table of authorities, and footnotes). The body text is in 14 point font, and
the footnote text is in 12 point font.



                                                      /s/ Rachel Multer Michalewicz
                                                          Rachel Multer Michalewicz




State’s Brief                                                                   Page 23 
                         CERTIFICATE OF SERVICE

I certify that a copy of the foregoing State’s Appellate Brief was mailed via

certified mail to Mr. Juan Angel Guerra, at 1021 Fair Park Blvd., Harlingen TX

78550 on the 9th day of July, 2015.



                                                      /s/ Rachel Multer Michalewicz
                                                          Rachel Multer Michalewicz
 




State’s Brief                                                                   Page 24 
