                         NUMBER 13-12-00038-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ALBERT LEE CHACON,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 221st District Court
                       of Montgomery County, Texas.


                         MEMORANDUM OPINION
                Before Justices Rodriguez, Garza, and Vela
                Memorandum Opinion by Justice Rose Vela
      A jury convicted appellant, Albert Lee Chacon, of the offense of bail jumping and

failure to appear, a third-degree felony. See TEX. PENAL CODE ANN. § 38.10(a), (f) (West

2011). After finding he had two prior felony convictions, the jury assessed punishment at

forty-nine years' imprisonment. By a single issue, appellant challenges the sufficiency of

the evidence to support the jury's finding that he was released from custody on a pending
felony charge. We affirm.1

                                        I. FACTUAL BACKGROUND

A. State's Evidence

        Kelly Lester, supervisor of the felony-intake division at the Montgomery County

District Attorney's Office, identified State's exhibit eight2 as appellant's bond. The bond,

dated June 7, 2010, showed appellant was arrested for misdemeanor driving while

intoxicated. Lester explained that when "intake" realized appellant already had two prior

convictions, he was indicted for felony driving while intoxicated, and his misdemeanor

bond became a felony bond. Lester identified State's exhibit one 3 as an indictment.

The indictment, dated June 17, 2010, charges appellant with the offense of driving while

intoxicated, enhanced by two prior convictions for driving while intoxicated.                       The

indictment was filed in the 435th District Court of Montgomery County, Texas.

        Chandra Bolt, a probation officer for the Montgomery County Department of

Community Supervision and Corrections, worked in the 435th District Court for a "little

over a year" and testified the 435th District Court is a felony court, which had never

handled misdemeanors. She identified State's exhibit six "as standard conditions of

bond that the Court imposed on the Defendant [appellant]." The prosecutor showed Bolt

State's exhibit 57-A4 and asked her, "Does this show that he [appellant] is on an ancillary


        1
          This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
        2
            The trial court admitted State's exhibit eight in evidence without objection.
        3
            The trial court admitted State's exhibit one in evidence without objection.
        4
            The trial court had previously admitted State's exhibit 57-A into evidence.

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bond?", she said, "Yes." When the prosecutor asked her, "He [appellant] is on a felony

bond out of the 435th, correct?", she said, "As far as we know, yes."                    Next, the

prosecutor asked her, "And that's what the paperwork shows?", she said, "That's correct."

She testified appellant never received permission to leave Montgomery County, Texas.

       As a bailiff for the 435th District Court, Tierni Cantrell had the duty to obtain a list of

people who did not show up for court on a particular day, go into the hallway, and call

each name three times, giving each person an opportunity to respond. On August 20,

2010, she called appellant's name three times. When appellant did not respond, she

signed a "Bailiff Certificate For Bond Forfeiture."5 When the prosecutor asked Cantrell,

"[D]oes the 435th District Court handle felony or misdemeanor cases?", she said,

"Felony."

       Adam Dietrich, a licensed Texas attorney, testified he knew appellant because on

May 10, 2010, he was appointed to represent him. At some point, Dietrich learned of an

indictment in the case now before this Court. Dietrich testified that on August 20, 2010,

he was present in the 435th District Court                When the prosecutor asked him, "And on

that date, did the Defendant [appellant] appear in court?", he said, "No, ma'am."

       David Godwin, a police officer for the Woodworth (Louisiana) Police Department,

testified that after stopping appellant for a traffic violation on October 29, 2010, he

discovered appellant had "a warrant out of Montgomery County, Texas." When the

prosecutor asked Officer Godwin, "Did the Defendant [appellant] know he had a warrant

out?", he said, "Yes."



       5
           The trial court admitted this document in evidence as State's exhibit four.
                                                      3
       Deputy Tracey Wade testified that on November 8, 2010, he was assigned to the

warrant division of the Montgomery County Sheriff's Office. On that date, he went to

Louisiana to pick up appellant. When the prosecutor asked Deputy Wade, "[W]hen you

went to extradite him [appellant] back to Montgomery County, Texas, were you

extraditing him on a felony warrant or a misdemeanor warrant?", he said, "It was on a

felony warrant."

B. Defense Evidence

       Lettie Moreno, appellant's sister, testified she last saw appellant in July 2010. He

stayed at her house in Mercedes, Texas for one month.            She testified that when

appellant "found work, he left to Louisiana to go look for it. And when he came back, he

was supposed to be with my mother for the Thanksgiving holiday. Right before he

arrived, he was arrested . . . ." When defense counsel asked her, "When did your brother

[appellant] leave your house?", she said, "He was with me in July. So he left August, mid

week of August 2010." When defense counsel asked her, "In the middle of the month

you mean?", she said, "Uh-huh."

       Appellant's former girlfriend, Nilda Pugh, testified appellant was arrested for

misdemeanor driving while intoxicated and that she was a "cosigner on . . . [his] bond, . .

. ." When the prosecutor asked her, "You became so upset [with appellant] that you

withdrew your surety?", she said, "Right . . . ."

                                       II. DISCUSSION

       In his sole issue, appellant challenges the sufficiency of the evidence "to support

the jury's finding that . . . [he] was released from custody on a pending felony charge[.]"


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We point out that the jury did not make a finding that appellant was released from custody

on a pending felony charge.          The "VERDICT OF THE JURY" attached to the

guilt-innocence charge stated:       "We, the Jury, find the defendant, ALBERT LEE

CHACON, Guilty of the offense of Bail Jumping and Failure to Appear, as alleged by

indictment."

A. Standard of Review

       "The standard for determining whether the evidence is legally sufficient to support

a conviction is 'whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.'" Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).

In Malik v. State, the court of criminal appeals articulated the "standard for ascertaining

what the 'essential elements of the crime' are; they are 'the elements of the offense as

defined by the hypothetically correct jury charge for the case.'" Johnson, 365 S.W.3d at

294 (quoting Malik, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The hypothetically

correct jury charge is one that at least 'accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240). The court of

criminal appeals has "described the law 'as authorized by the indictment' to be 'the

statutory elements of the offense . . . as modified by the charging instrument[.]'" Id.

(quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).


                                              5
B. Applicable Law

       The Texas Penal Code defines the offense of bail jumping and failure to appear as

follows: "A person lawfully released from custody, with or without bail, on condition that

he subsequently appear commits on offense if he intentionally or knowingly fails to

appear in accordance with the terms of his release." TEX. PENAL CODE ANN. § 38.10(a).

The penal code further provides, in relevant part, that "an offense under this section is a

Class A misdemeanor" unless "the offense for which the actor's appearance was required

is classified as a felony" in which case the offense is elevated to a third-degree felony.

Id. § 38.10(d), (f). Section 38.10 does not require that the person be physically released

from custody for a felony, only that "the offense for which the actor's appearance was

required is classified as a felony." See id. § 38.10(f).

C. Analysis

       1. Whether Appellant Was Lawfully Released From Custody On Condition
          He Subsequently Appear

       The evidence showed that appellant, after having been arrested for misdemeanor

driving while intoxicated, was later released from custody on a misdemeanor bond.

During Lester's cross-examination, defense counsel, referring to appellant's bond, asked

Lester, "This is the bond that was executed the day that Mr. Chacon [appellant] was

lawfully released from custody; is that correct?" To this, Lester replied, "That is correct."

       Appellant's bond included an "ORDER SETTING FIRST COURT APPEARANCE,"

which required him to appear "Instanter." In addition, the evidence showed that after

appellant made bond, he was indicted, and the indictment was filed in the 435th District

Court. Sheri Mericle, a legal assistant for the Montgomery County District Attorney's

                                             6
Office, identified State's exhibit two6 as "the scheduling order that the Defendant receives

when they come to court . . . on their arraignment date."              She testified appellant

appeared in the 435th District Court on July 16, 2010, and that his next date to appear in

the 435th District Court was August 20, 2010 at nine o'clock.

       Appellant's scheduling order stated, in relevant part:          "08/20/2010 09:00 AM

PRE-TRIAL MOTION DATE/PLEA ACCEPTANCE DATE Defendant and Counsel MUST

appear on this date and time." The signatures of appellant and his defense counsel

appear at the bottom of the scheduling order. When the prosecutor asked Mericle,

"What are those signatures down at the bottom [of the scheduling order]?", she said, "The

signature and date at the bottom is the signature of the Defendant and the defense

counsel saying that he has received a copy of this with all of [the] dates of when he has to

come to court." When the prosecutor asked her, "So . . . the next date he [appellant] is

supposed to appear is what?", she said, "8-20-2010."

       "A bail bond requiring an accused to appear instanter gives proper notice to the

defendant when he is to appear."                  Burns v. State, 958 S.W.2d 483, 488 (Tex.

App.—Houston [14th Dist.] 1997, no pet.) (emphasis in original). "Unless appellant

sufficiently establishes a reasonable excuse for his failure, the bond itself is sufficient to

prove that appellant intentionally and knowingly failed to appear in accordance with the

terms of the release." Id. (citing Euziere v. State, 648 S.W.2d 700, 702 (Tex. Crim. App.

1983)).

       In the instant case, appellant's bond required him to appear instanter, and he failed

to sufficiently establish a reasonable excuse for his failure to appear in the 435th District
       6
           The trial court admitted State's exhibit two in evidence.
                                                       7
Court on August 20, 2010. According to his scheduling order, he was required to appear

in the 435th District Court on August 20, 2010. However, he failed to do so. Thus, the

bond itself is sufficient to prove appellant intentionally and knowingly failed to appear in

accordance with the terms of his release. See id.

       2. Whether The Offense Of Bail Jumping And Failure To Appear Was
          Elevated To A Third-Degree Felony

       The evidence showed that appellant was originally charged with the offense of

driving while intoxicated, second offense, which is a Class A misdemeanor. See TEX.

PENAL CODE ANN. § 49.09(a) (West Supp. 2011).                 However, on June 17, 2010, an

indictment was filed in the 435th District Court of Montgomery County, Texas. This

indictment charged appellant with the primary offense of driving while intoxicated,

enhanced by two prior convictions for driving while intoxicated. Section 49.09 of the

Texas Penal Code provides, in relevant part, that "(b) An offense under Section 49.04

[driving while intoxicated], . . . is a felony of the third degree if it is shown on the trial of the

offense that the person has previously been convicted: . . . (2) two times of any other

offense relating to the operating of a motor vehicle while intoxicated, . . . ."               Id. §

49.09(b)(2). After appellant was indicted, he was required to appear in the 435th District

Court on August 20, 2010. However, he failed to appear, and a felony warrant was

issued for his arrest.     Thus, the offense of bail jumping and failure to appear was

elevated from a Class A misdemeanor to a third-degree felony because the offense for

which appellant's appearance was required is classified as a felony, i.e., felony driving

while intoxicated. See id. § 38.10(f).



                                                 8
       After viewing the evidence in the light most favorable to the verdict, we hold that a

rational trier of fact could have found beyond a reasonable doubt that appellant

committed the offense of bail jumping and failure to appear and that the offense for which

his appearance was required is classified as a felony. We overrule the sole issue for

review.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.




                                                    ROSE VELA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of November, 2012.




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