                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-16-00039-CR



                          RICHARD CHARLES FININEN, Appellant

                                               V.

                              THE STATE OF TEXAS, Appellee



                             On Appeal from the 5th District Court
                                     Cass County, Texas
                                 Trial Court No. 2015F00270




                         Before Morriss, C.J., Moseley and Carter,* JJ.
                          Memorandum Opinion by Justice Moseley


______________________

*Jack Carter, Justice, Retired, Sitting by Assignment
                           MEMORANDUM OPINION
         Richard Charles Fininen was arrested for indecency with a child by contact (underlying

offense). He was released after posting a $20,000.00 surety bond, which he obtained from Texas

Bail Bonds. After hearing evidence that Fininen missed an October 27, 2014, trial date for the

underlying offense, a jury convicted him of bail jumping and failure to appear.                                During

punishment,1 which was determined by the trial court, Fininen pled true to the State’s enhancement

paragraphs alleging that he had previously been convicted of two felony offenses. As a result, the

trial court sentenced Fininen to forty years’ imprisonment.

         On appeal, Fininen focuses on Section 38.10(c) of the Texas Penal Code, which provides

a defense to prosecution for bail jumping and failure to appear if “the actor had a reasonable excuse

for his failure to appear in accordance with the terms of his release.” TEX. PENAL CODE ANN.

§ 38.10(c) (West 2011).2 Fininen argues that the evidence was legally insufficient to support the

jury’s rejection of his reasonable-excuse defense. Because legally sufficient evidence supports the

jury’s rejection of that defensive issue, we affirm the trial court’s judgment.



1
 Bail jumping and failure to appear is “a felony of the third degree if the offense for which the actor’s appearance was
required is classified as a felony.” TEX. PENAL CODE ANN. § 38.10(f) (West 2011).
2
 Section 38.10(c) creates a defense, not an affirmative defense. See TEX. PENAL CODE ANN. § 2.03 (West 2011). The
distinction between a statutory defense and an affirmative defense is critical and impacts the standard of review.
“Affirmative defenses may be evaluated for legal and factual sufficiency, even after [The Texas] Court [of Criminal
Appeals] handed down its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), which abolished
factual-sufficiency review as it applies to criminal convictions.” Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim.
App. 2015); see Matlock v. State, 392 S.W.3d 662, 669–70 (Tex. Crim. App. 2013). This is because a defendant must
prove an affirmative defense by a preponderance of the evidence. TEX. PENAL CODE ANN. § 2.04(d) (West 2011).
However, because a defendant asserting a defense only bears a burden of production, with the State continuing to bear
the burden of persuasion, a rejection of a defense is only subject to a legal sufficiency analysis. See Matlock, 392
S.W.3d at 669; Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Accordingly, although Fininen raises
the issue of factual sufficiency, we do not address that issue in light of Brooks.

                                                           2
I.     Factual Background

       Under the terms of the bond agreement with Texas Bail Bonds, Fininen agreed to:

(1) appear in court on all appearance dates related to the underlying offense specified by his

attorney, the trial court, or the court clerk; (2) keep current his address and telephone number;

(3) stay within Cass County unless given written consent to leave the county; (4) pay $200.00

per month to Texas Bail Bonds; and (5) report to his bondsman during normal business hours at

least once a week. Jerry Don Kellough, owner of Texas Bail Bonds, testified that he explained to

Fininen the importance of appearing at every court date and keeping his contact information

current, as well as the dire consequences of failing to appear for a court date. Kellough testified

that Fininen made no payments on his obligation under the bond agreement and that after “the first

three to six weeks,” Fininen failed to maintain contact with him. Kellough also testified that his

attempts to contact Fininen were unfruitful.

       Tara Daugherty, the Chief Deputy Cass County District Clerk, testified that Fininen

appeared in court for a hearing related to the underlying offense on September 15, 2014, and signed

an order to appear. The order to appear, bearing Fininen’s signature, required him to appear in the

Fifth Judicial District Court in Cass County, Texas, on October 27, 2014, at 9:00 a.m. In spite of

that order, bailiff John Smith testified that Fininen did not appear in court on October 27.

       No one testified in support of Fininen’s defense. Instead, Fininen merely admitted medical

records from Parkland Memorial Hospital in Dallas, Texas, which established that he was admitted

to that hospital on October 27, 2014, at 10:47 a.m. The medical records showed that Fininen drove

himself to the emergency room where he was seen by Dr. Brian Alden Kendall. Kendall’s notes

                                                 3
indicated that Fininen was involved in a motor vehicle accident on October 25 and was

complaining of chest and right hip pain. Kendall ordered x-rays of Fininen’s chest and hip.

Although doctors “attempted to persuade [Fininen] to stay for CT,” of his hip, Fininen decided,

against medical advice, to leave the hospital because he “ha[d] no one else to pick up children

from school.” Fininen was discharged at 2:27 p.m.

       After hearing this evidence, the jury rejected Fininen’s reasonable-excuse defense and

found him guilty of bail jumping and failure to appear.

II.    Standard of Review

       The Texas bail jumping and failure to appear statute reads, “A person lawfully released

from custody, with or without bail, on condition that he subsequently appear commits an offense

if he intentionally or knowingly fails to appear in accordance with the terms of his release.” TEX.

PENAL CODE ANN. § 38.10(a) (West 2011). Fininen was indicted for bail jumping and failure to

appear in court on October 27, 2014, which required the State to prove that he “(1) was lawfully

released from custody, with or without bail; (2) on condition that he subsequently appear; and

(3) intentionally or knowingly failed to appear in accordance with the terms of his release” on

October 27. See Johnson v. State, 416 S.W.3d 602, 606 (Tex. App.—Houston [14th Dist.] 2013,

no pet.) (citing Walker v. State, 291 S.W.3d 114, 117 (Tex. App.—Texarkana 2009, no pet.)); see

also TEX. PENAL CODE ANN. § 38.10(a) (West 2011).

       “[F]ailure to appear in accordance with the terms of one’s release is a crime only if the

failure is intentional or knowing. Such a culpable mental state cannot be shown absent proof the

defendant had notice of the proceeding at which he failed to appear.” Richardson v. State, 699

                                                4
S.W.2d 235, 238 (Tex. App.—Austin 1985, pet. ref’d) (per curiam) (op. on reh’g). Generally, an

instanter bond, like the one in this case, “gives proper notice and, in the absence of evidence of a

reasonable excuse, is sufficient to prove an appellant intentionally and knowingly failed to appear.”

Bell v. State, 63 S.W.3d 529, 531 (Tex. App.—Texarkana 2001, pet. ref’d) (citing Euziere v. State,

648 S.W.2d 700, 702 (Tex. Crim. App. 1983); Etchison v. State, 880 S.W.2d 191, 192 (Tex.

App.—Texarkana 1994, no pet.)).

            In this case, Fininen does not dispute that he was lawfully released from custody on a surety

bond based on the condition that he subsequently appear in court on that charge, or that he

knowingly failed to appear in court pursuant to the terms of the release. He also does not dispute

that he knew about the October 27, 2014, trial date.3 Instead, Fininen only complains of the jury’s

rejection of his reasonable excuse defense.4


An “appellant’s acknowledgment of the notice of the trial setting [i]s sufficient to establish that his failure to appear
3

was done intentionally or knowingly and without a reasonable excuse.” Barrera v. State, 978 S.W.2d 665, 671 (Tex.
App.—Corpus Christi 1998, pet. ref’d).
4
    In accord with Fininen’s request, the trial court included the following instruction in its jury charge:

            “Reasonable Excuse”

                     It is a defense to the offense of Bail Jumping and Failure to Appear Felony that the actor
            had a reasonable excuse for his failure to appear in accordance with the terms of his release. An
            excuse is a reason that justifies an act or omission or that relieves a person of a duty.

                      A reasonable excuse must encompass the entire time the defendant was absent from court,
            i.e. from the time his name was called in the courtroom to the time he was ultimately apprehended
            or appeared in court.

Applying the law to the case, the court further instructed the jury, as follows:

            [I]f you find from the evidence beyond a reasonable doubt that the defendant, Richard Charles
            Fininen, did after being lawfully released from custody on a pending felony charge on condition
            that he subsequently appear in court, intentionally or knowingly fail to appear in accordance with
            the terms of his release, as charged in the indictment, but you further find, or have a reasonable
            doubt thereof, that during the time the defendant failed to appear, the defendant had a reasonable
                                                               5
       Fininen argues that reasonable excuse was proven as a matter of law. A reasonable excuse

is one that an ordinary and prudent person would rely on under the same or similar circumstances

to justify his failure to make a court appearance. See Gallegos v. State, 828 S.W.2d 577, 579 (Tex.

App.—Houston [1st Dist.] 1992, no pet.). “Whether a defense is reasonable is generally a matter

for the jury.” Luce v. State, 101 S.W.3d 692, 694 (Tex. App.—Texarkana 2003, no pet.).

       In raising a defense to prosecution, a defendant bears the burden of production, which

requires the production of some evidence that supports the particular justification. See TEX. PENAL

CODE ANN. § 2.03 cmt.; Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v.

State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant produces such evidence,

the State then bears the burden of persuasion “to disprove the raised defense.” Zuliani, 97 S.W.3d

at 594; Saxton, 804 S.W.2d at 913–14. The burden of persuasion does not require the production

of evidence, but rather only requires that the State persuade the jury beyond a reasonable doubt.

Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Zuliani, 97 S.W.3d at 594. A jury

verdict of guilt results in an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at

594; Saxton, 804 S.W.2d at 914. Specifically, “[i]ncluded in the jury’s determination is whether

the defendant actually relied on the reason he or she gave for not appearing in court.” Luce, 101

S.W.3d at 694.

       Typically, in reviewing the sufficiency of the evidence to support the jury’s rejection of

the Section 38.10(c) defense, we examine all of the evidence in the light most favorable to the




       excuse that justified his failure to appear, you will find the defendant not guilty and say so by your
       verdict.
                                                         6
verdict to determine (1) if challenged, whether any rational trier of fact could have found the

essential elements of the offense and (2) whether the fact-finder could have found against the

defendant on the defensive issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. Because

Fininen does not challenge the first prong, we focus on the second prong in this case. Unlike cases

involving an affirmative defense, we do not conduct a separate factual sufficiency review in

determining whether the evidence is sufficient to support a jury’s rejection of a defense. See

Brooks, 323 S.W.3d at 895. We give deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v.

Virginia, 443 U.S. 307, 318–19 (1979)); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007).

III.     The Jury’s Rejection of Fininen’s Defense Was Supported by Legally Sufficient
         Evidence

         We believe that ample evidence supports the jury’s determination that Fininen did not

actually rely on his hospitalization as his reason for failing to appear in court. Kellough testified

that Fininen had already criticized his responsibilities under the bond agreement after “the first

three to six weeks.” Fininen failed to make payments under the bond agreement, keep in contact

with Kellough, and provide updated contact information. In spite of a prohibition against leaving

Cass County in the absence of a written waiver from Texas Bail Bonds, Fininen travelled to Dallas

and remained there long enough to become responsible for picking up children who were enrolled

in Dallas schools.


                                                 7
         Further, nothing demonstrated that Fininen was en route to the Cass County District Court

on October 27, 2014, for his 9:00 a.m. appearance time when he was admitted to the hospital at

10:47 a.m. Although he was well enough to drive himself to the hospital and pick up children after

his discharge,5 there was no evidence showing that Fininen had placed a telephone call to the trial

court, court clerk, or Kellough to inform them that he was in the hospital. In fact, the jury heard

evidence that a warrant for Fininen’s arrest was issued on November 6, 2014, but that he was

nowhere to be found until June 11, 2015, when he was arrested in Dallas County. Based on this

evidence, the jury was free to determine that Fininen had fled to Dallas and had no intention of

appearing at his October 27 trial in Cass County.

         Viewing the evidence in a light most favorable to the verdict, we conclude that it is legally

sufficient to support the jury’s rejection of Fininen’s reasonable excuse defense, beyond a

reasonable doubt. See Bell, 63 S.W.3d at 533.

IV.      Conclusion

         We affirm the trial court’s judgment.




                                                      Bailey C. Moseley
                                                      Justice
Date Submitted:            October 13, 2016
Date Decided:              October 27, 2016

Do Not Publish


5
 At 12:33 p.m., Fininen underwent “PA and lateral chest radiographs” which showed “[p]late like opacities in the left
lower chest,” but confirmed an “[o]therwise, unremarkable chest.”
                                                         8
