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                                               OPINION

                                          No. 04-08-00437-CV

                               Roland GARCIA, Attorney at Law, Surety,
                                           Appellant

                                                    v.

                                            STATE of Texas,
                                               Appellee

                      From the 187th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2004-SF-0576
                            Honorable Raymond Angelini, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 1, 2009

AFFIRMED

           This is an appeal from a bail bond forfeiture. Appellant Roland Garcia, attorney for San Juan

Gustamante, executed a $50,000 bail bond for his client. When Gustamante failed to appear, the

State sought and obtained a bond forfeiture. Garcia, as surety, appeals. We affirm the trial court’s

judgment.
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                                          BACKGROUND

       On February 27, 2003, Gustamante was arrested and charged with possession of cocaine.

Later that year, under cause number 2003-CR-4621W, Gustamante pled to possession with intent

to deliver a controlled substance in penalty group one in an amount more than four grams but less

than two hundred grams. After being sentenced to a term of eighteen years in prison in accordance

with his plea agreement, Gustamante filed a motion for new trial that was ultimately granted. Garcia

became Gustamante’s attorney and, as surety, executed a $50,000 bond on Gustamante’s behalf on

October 31, 2003.

       On November 19, 2003, Gustamante was indicted under a new cause number for the offenses

of possession with intent to deliver, and possession of, a controlled substance in penalty group one

in an amount more than four grams but less than two hundred grams. The date of the offenses was

the same date as the original charge. However, the State also added an enhancement paragraph to

the indictment, alleging Gustamante had previously been convicted of a felony offense. See TEX .

PENAL CODE ANN . § 12.42 (Vernon Supp. 2008) (providing for enhanced punishment for repeat

offenders). Subsequently, the State moved to dismiss cause number 2003-CR-4621W, and the

motion was granted.

       After the indictment was returned, and without Garcia’s knowledge, the original bond was

altered by crossing out the original cause number and writing in the new cause number. In August

of 2004, Gustamante appeared and pled to the indicted offense. At that point, Garcia apparently was

no longer attorney for Gustamante.       As part of the plea agreement, the State dropped the

enhancement paragraph and recommended a “cap” of twelve years. Gustamante was to appear on




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October 18, 2004, for sentencing, but did not. The trial court signed a Judgment Nisi against

Gustamante and Garcia on November 18, 2004.

       More than three years later, on February 14, 2008, the trial court held a bond forfeiture

hearing. Gustamante was still a fugitive at the time of the hearing. At the hearing, the court took

judicial notice of the court’s file, including the Judgment Nisi and, over Garcia’s objection, admitted

the bail bond into evidence without a sponsoring witness. Garcia testified he was unaware of the re-

indictment, despite the fact he was counsel of record for Gustamante at the time it was issued, and

that he would not have consented to remain on the bond if he had known about the addition of the

enhancement paragraph. He testified that the addition of the enhancement paragraph increased the

minimum punishment, making Gustamante ineligible for probation. According to Garcia, this

increase in the range of punishment – specifically the exclusion of the possibility of probation –

made it more likely that Gustamante would flee, thereby increasing Garcia’s risk on the bond.

       At the conclusion of the hearing, the trial court ruled in favor of the State and the next day

signed the final judgment awarding the State $50,000. At Garcia’s request, the trial court made

findings of fact and conclusions of law.

                                             ANALYSIS

       Garcia brings three issues on appeal, contending the trial court erred in granting the final

judgment in favor of the State because (1) there was insufficient evidence, (2) the State modified the

terms of the bond without Garcia’s consent, and (3) there is a fatal and material variance between

the bond, the judgment nisi, and the indictment.




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                    Variance Between Bond, Indictment, and Judgment Nisi

        Garcia claims the trial court erred in granting final judgment because there is a “fatal and

material variance” in the bail bond, judgment nisi, and the indictment.

        The bond reflects the criminal charge as “Poss W/I Del C/S PG1 4g-200g.” The indictment

contains two counts alleged to have been committed on the same date – possession with intent to

deliver a “controlled substance, namely: COCAINE, which by aggregate weight . . . was of an

amount FOUR (4) GRAMS OR MORE BUT LESS THAN TWO HUNDRED (200) GRAMS,” and

a lesser charge of possession of the same controlled substance in a similar amount. The judgment

nisi reflects a felony charge of possession with intent to deliver a controlled substance (penalty group

one) of between four and two hundred grams.1 All three documents refer to the same charge. There

is simply no variance among the documents.

        Garcia, however, argues the addition of the enhancement paragraph changed the offense for

which he undertook the original bond. He asserts the indictment “recites a different and more

serious felony charge” than the one alleged in the bond. We disagree. The addition of the allegation

in the indictment that Gustamante had been previously convicted of a felony did not change the

offense but rather the range of punishment applicable to the offense. The State need not prove the

commission of the prior offense in the guilt/innocence stage of the trial to obtain a conviction. See

generally Brooks v. State, 957 S.W.2d 30, 32 (Tex. Crim. App. 1997). The enhancement paragraph

was relevant only to sentencing and did not change the underlying charge. See Square v. State, 167

S.W.2d 192, 193-94 (Tex. Crim. App. 1942). Accordingly, we overrule this point of error.




        1
          … The judgment actually states “POSS W /I DEL CS PG1 4G-200G.” Cocaine is a penalty group one
controlled substance. See H EALTH & S AFETY C O D E A N N . § 481.102 (3)(D) (Vernon Supp. 2008).

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                                Modification of Surety Bond Terms

       Garcia claims that by adding the enhancement paragraph to the indictment, the State

increased the risk he undertook as surety without his consent. Garcia argues that because the original

bond was for a first degree felony without a “repeater” allegation, the State, by potentially increasing

the punishment applicable to the charge, unilaterally and without his consent increased his risk, and

therefore cannot recover on the bond forfeiture. We again disagree with his arguments and

conclusion.

       Garcia cites several federal decisions and decisions from outside Texas to support his

argument. See Reese v. U.S., 76 U.S. 13 (1869) (holding surety was discharged on federal bail bond

when Government allowed principal to return to Mexico without surety’s agreement); U.S. v.

Galvez-Uriarte, 709 F.2d 1323 (9th Cir. 1983) (same); Continental Cas. Co. v. U.S., 337 F.2d 602

(1st Cir. 1964) (holding attorney-surety was not discharged on federal bail bond when attorney-surety

knew court had given principal permission to leave country before federal bond was executed by

“actual writing agent”); People v. Jones, 873 P.2d 36 (Colo. App. 1994) (holding sureties were

discharged on bond because subsequent filing of habitual criminal charges against principal

materially increased risk to sureties); Am. Bankers Ins. Co. v. Monroe County, 644 So.2d 560 (Fla.

Dist. Ct. App. 1994), rev. denied, 654 So.2d 919 (Fla. 1995) (holding surety was discharged on bond

because addition of conspiracy charge substantially increased risk to surety); Midland Ins. Co. v.

State, 354 So.2d 961 (Fla. Dist. Ct. App. 1978) (holding surety was discharged on bond when

principal was originally charged with second degree murder and then indicted for first degree murder

because difference in punishments was potentially substantial – life sentence versus death penalty);

State v. Ceylan, 799 A.2d 685 (N.J. Super. Ct. App. Div.), cert. denied, 810 A.2d 64 (N.J. 2002)



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(holding that surety was discharged on bond because post-verdict release of principal after conviction

materially increased risk to surety). Garcia also relies on provisions of the Third Restatement of Law

of Suretyship and Guaranty. See RESTATEMENT (THIRD ) OF SURETYSHIP & GUARANTY (1996).

However, Garcia does not cite any Texas cases in which the cited provisions of the Restatement have

been adopted.2 He also fails to reconcile any of the cited authorities with article 17.09 of the Texas

Code of Criminal Procedure, which states:

         Sec. 1. Where a defendant, in the course of a criminal action, gives bail before any
         court or person authorized by law to take same, for his personal appearance before
         a court or magistrate, to answer a charge against him, the said bond shall be valid and
         binding upon the defendant and his sureties, if any, thereon, for the defendant’s
         personal appearance before the court or magistrate designated therein, as well as
         before any other court to which same may be transferred, and for any and all
         subsequent proceedings had relative to the charge, and each such bond shall be so
         conditioned except as hereinafter provided.

         Sec. 2. When a defendant has once given bail for his appearance in answer to a
         criminal charge, he shall not be required to give another bond in the course of the
         same criminal action except as herein provided.

TEX . CODE CRIM . PROC. ANN . art. 17.09 §§ 1, 2 (Vernon Supp. 2008).

         In Shropshire v. State, the court of criminal appeals looked to article 17.09 when it

considered whether a summary judgment granted in favor of the State was proper where the original

bond recited the offense was for theft by false pretext but the defendant was indicted for two offenses

– forgery and uttering and passing as true a forged instrument. 433 S.W.2d 898, 899-900 (Tex.

Crim. App. 1968). When the defendant failed to appear for trial, the bond was forfeited. Id. at 899.

In the bond forfeiture proceedings, the judgment nisi and the final judgment reflected the bond was



         2
           … In fact, the Restatement has been cited only twice in this state. Byrd v. Estate of Nelms, 154 S.W .3d 149,
164-65 (Tex. App.–W aco 2004, pet. denied); Ashcraft v. Lookadoo, 952 S.W .2d 907, 919 (Tex. App.–Dallas 1997)
(W right, J., dissenting), pet. denied, 977 S.W .2d 562 (Tex. 1998). Neither of these cases addresses whether Texas has
adopted the Restatement nor do they involve the provisions relied upon by Garcia.

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for the offense of theft by pretext. Id. The surety argued he was never liable on the forgery offenses

because the offenses were different than the offense for which the bond was written – theft by false

pretext. See id. at 899-900. The State argued that the provisions of article 17.09 applied and the

liability of the original bond affixed to the indicted offenses. Id. at 900. The court of criminal

appeals held it could not determine from the record before it if the indicted offenses were

“subsequent proceeding[s] relative to the original charge.” Id. at 900. Accordingly, the court ruled

in favor of the surety. Id.; see also Deckard v. State, 605 S.W.2d 918, 920-21 (Tex. Crim. App.

1980) (reversing summary judgment because record failed to establish the bond offense and the

indicted offense were part of the same ongoing criminal action); Trevino v. State, Nos. 13-04-046-

CV and 13-04-047-CV, 2005 WL 1643184, at *1-*2 (Tex. App.–Corpus Christi 2005, Jul. 14, 2005,

no pet.) (mem. op.) (affirming bond forfeiture where bond offense and indicted offense differed

because record established indicted offense arose from same criminal episode as offense for which

bond was written).

       Although Shropshire, Deckard, and Trevino analyze the issue in light of whether there was

a variance between the judgment nisi and the final judgment, the reasoning in those opinions

demonstrates why Garcia’s argument fails. Our law clearly contemplates the surety will continue

to be liable for his bond even though the severity of criminal charges may change as long as any

subsequent charge is relevant to, or arises out of the same episode as, the original. See TEX . CODE

CRIM . PROC. ANN . art. 17.09 §§ 1, 2 (Vernon Supp. 2008). It is clear from the record that

Gustamante’s indictment for possession with intent to distribute cocaine in an amount over four

grams was a subsequent proceeding related to the original charge – the State merely expanded upon

the original charge for purposes of punishment by adding an enhancement paragraph. Accordingly,



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the bond for the original charge was valid and binding for the subsequent indictment, and we

overrule this point of error.

        Even without the application of article 17.09, Garcia’s argument fails based on the facts of

this case. The inclusion of the enhancement paragraph in the indictment increased Gustamante’s

potential punishment from five-to-ninety-nine years or life to fifteen-to-ninety-nine years or life. See

TEX . HEALTH & SAFETY CODE ANN . § 481.112(d) (Vernon 2003) (stating knowing manufacture,

delivery, or possession with intent to deliver controlled substance in Penalty Group 1 in amount of

four grams or more but less than two hundred grams is first degree felony); compare TEX . PENAL

CODE ANN . § 12.32(a) (Vernon 2003) (stating first degree felony punishable by imprisonment for

life or for any term of not more than ninety-nine years or less than five years) with TEX . PENAL CODE

ANN . § 12.42(c)(1) (stating that if defendant has been previously convicted of felony, subsequent

conviction for another first degree felony is punishable by imprisonment for life or for any term of

not more than ninety-nine years or less than fifteen years). This increase made Gustamante

statutorily ineligible for probation. See TEX . CODE CRIM . PROC. ANN . art. 42.12 § 3(e)(1) (Vernon

Supp. 2008) (stating defendant not eligible for community supervision if sentenced to term of

imprisonment that exceeds ten years). However, when Gustamante pled, the State dropped the

enhancement paragraph as part of the plea agreement. At this point, Gustamante was exposed to the

same punishment range as when Garcia executed the bond. Accordingly, when the bond was

forfeited, there was no increased risk to Garcia. We overrule this point of error.

                                        Insufficient Evidence

        Garcia contends the evidence is insufficient to support the final judgment because the trial

court, over his objection, admitted a copy of the bond into evidence without requiring the State to



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make its offer through a sponsoring witness with a proper predicate. Because of this failure, Garcia

argues the court did nothing more than take judicial notice of the bond, which he contends the court

may not do.

       The State has the burden in a bond forfeiture proceeding to prove the existence of the bond

and the judicial declaration of its forfeiture, which is known as the judgment nisi. Kubosh v. State,

241 S.W.3d 60, 63 (Tex. Crim. App. 2007). The State is generally required to present and offer both

the bond and the judgment nisi into evidence. However, the court of criminal appeals has held the

trial court may take judicial notice of the judgment nisi, Hokr v. State, 545 S.W.2d 463, 466 (Tex.

Crim. App. 1977), and has also held that under certain circumstances the trial court may take judicial

notice of the bond. Kubosh, 241 S.W.3d at 66-67.

       In Kubosh, the appellant argued the evidence was insufficient to support the trial court’s bond

forfeiture judgment because the trial court could not take judicial notice of the bond. 241 S.W.3d

at 63-64. The court of criminal appeals disagreed. Id. at 66-67. The court reasoned that because

the appellant did not allege a variance between the bonds at issue and the judgment nisi, and the

court found none, the trial court was permitted to take judicial notice of the bonds. Id. at 65-67.

       Here, Gustamante has alleged a variance between the bond and the judgment nisi. However,

as discussed above, the record shows no such variance. The record shows that the only difference

between the bond originally executed by Garcia and the judgment nisi is the cause number assigned

to the criminal case and the computer number used to track the bond. The record establishes this

difference was created or caused by the State’s decision to dismiss the original case after Gustamante

was formally indicted on the same charge. The State’s motion to dismiss, which was signed by the

court, states the dismissal was filed because the case had been “reindicted/refiled.” Although we



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recognize the numbers were changed, the changes were not of sufficient substance to constitute a

material variance, especially in light of article 17.09. Under these circumstances, and consistent with

the court’s analysis in Kubosh, the trial court did not err in taking judicial notice of the bond.

Accordingly, we overrule Garcia’s sufficiency complaint.

                                            CONCLUSION

       Having overruled appellant’s points of error, we affirm the trial court’s judgment.



                                                        Steven C. Hilbig, Justice




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