                                                                      ACCEPTED
                                                                    041500148CR
                                                      FOURTH COURT OF APPEALS
                                                           SAN ANTONIO, TEXAS
                                                            7/20/2015 12:00:00 AM
                                                                   KEITH HOTTLE
                                                                           CLERK

                  04-15-00148-CR

      IN THE COURT OF APPEALS FOR THE           FILED IN
                                         4th COURT OF APPEALS
          FOURTH DISTRICT OF TEXAS        SAN ANTONIO, TEXAS
              SAN ANTONIO, TEXAS         7/20/2015 11:39:00 AM
          ______________________________     KEITH E. HOTTLE
                                                  Clerk




 RAYMOND MARTINEZ V. THE STATE OF TEXAS



         ______________________________

ON APPEAL FROM 175TH JUDICIAL DISTRICT COURT
          OF BEXAR COUNTY, TEXAS

  TRIAL CAUSE NO. 2010-CR-10065 / 2012-SF-00047

    HONORABLE MARY D. ROMAN PRESIDING
        ______________________________

          BRIEF FOR THE APPELLANT

             RAYMOND MARTINEZ
         ______________________________


              ANTHONY J. COLTON
              State Bar No. 24064564
            acolton@coltonlawfirm.com
      301 FAIR AVE, SAN ANTONIO TX 78223
               Phone: (210) 593-8717
                Fax: (866) 367-6071
             Attorney for the Appellant


         ORAL ARGUMENT REQUESTED

                        -i-
                   IDENTITY OF PARTIES AND COUNSEL

Pursuant to TEX. R. APP. P. 38.1(a) (2011), the parties to the suit are as follows:

APPELLANT                               Raymond Martinez, is the appellant and
                                        was the surety/defendant in the trial court.

APPELLEE                                The State of Texas, by and through the
                                        Bexar County District Attorney at 101 W.
                                        Nueva, 4th Floor, San Antonio, TX 78205

TRIAL JUDGE                             The Honorable Mary D. Roman
                                        Presiding Judge – 175th Judicial District
                                        Court

APPELLANT ATTORNEY                      Anthony J. Colton
                                        301 Fair Ave
                                        San Antonio, Texas 78223

APPELLEE ATTORNEY                       Nicolas A. LaHood
Also served as trial attorney           Bexar County District Attorney
                                        101 W. Nueva, 4th Floor
                                        San Antonio, TX 78205




                                           ii
                                          TABLE OF CONTENTS
                                                                                                           Page(s)

Identity of Parties and Counsel ................................................................................... ii

Table of Contents ........................................................................................................ iii

Index of Authorities ..................................................................................................... iv

Statement of Case......................................................................................................... 1

Statement Regarding Oral Argument .......................................................................... 1

Issues Presented ........................................................................................................... 1

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

Summary of the Argument .......................................................................................... 4

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

Conclusion and Prayer ................................................................................................. 8

Certificate of Service ................................................................................................... 10

Certificate of Compliance ............................................................................................ 10




                                                            iii
                                      INDEX OF AUTHORITIES
                                                                                                           Page(s)

   CASES
Mendez v. State, No. 03-12-00200-CV, 2013 Tex. App. LEXIS 13278, 2013 WL
 5914142, (Tex.App.--Austin Oct. 25, 2013, no pet.)(mem. op.) ...............................4

Kubosh v. State, 241 S.W.3d 60, 63 (Tex.Crim.App. 2007) .........................................5

Alvarez v. State, 861 S.W.2d 878, 881 (Tex.Crim.App. 1992) ....................................5

Spears v. State, 381 S.W.3d 667, 669 (Tex.App.--Eastland 2012, no pet.) ..................5

Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008) ............5

Hernden v. State, 505 S.W.2d 546, 548 (Tex.Crim.App. 1974) ...................................5

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624 (1951) ...6

Burns v. State, 861 S.W.2d 878 (Tex. Crim. App. 1993) .............................................7


STATUTES

Tex. Code Crim Proc Art 22.13 ................................................................................4, 7

U.S. Const. amend XIV .................................................................................................4

Tex. Const. art I, § 13, 19 ..............................................................................................4

Tex. Code Crim. Proc. Ann. art. 44.44 ..........................................................................4

Tex. Code Crim. Proc. Art 17.085 ................................................................................6




                                                             iv
To the Honorable Fourth Court:

Now comes, Anthony J. Colton, and file this brief on behalf of Appellant Raymond
Martinez.

                            STATEMENT OF CASE

      On February 13, 2012, a Judgment NISI was entered pending a showing of

good cause against Jose Guerrero Beltran, as Principal, and Raymond Martinez, as

surety, for failure of Jose Guerrero Beltran to appear for sentencing on January 9,

2012. (RR Vol 2, Pg 4).

      On September 17, 2014, a hearing was held in the trial Court concerning the

Bond Forfeiture based on the Judgment NISI. On February 17, 2015, the Court

forfeited the bond and entered judgment for Twenty Thousand Dollars ($20,000).

      This Appeal was subsequently filed.

              STATEMENT REGARDING ORAL ARGUMENT

Although the Defendant does not anticipate the issues in this case to be so complex

as to require oral argument, the Defendant would request oral argument if the

Court deems it would benefit from an oral presentation of the case.

                              ISSUES PRESENTED

   1) Whether a Defendant must be given notice of his Court setting.

   2) Whether failure of the Court to provide sufficient notice of a Court setting is

      sufficient to exonerate a surety of their liability under an appearance bail

      bond.


                                        -1-
                            STATEMENT OF FACTS

The Court did not provide sufficient notice to Defendant of his trial setting of

January 9, 2012, in order to provide the basis for forfeiting his bond.

   1) The underlying criminal case against Jose Beltran in cause number 2010-

      CR-10065 was indicted in 2010.

   2) On October 15, 2010, Mr. Beltran was released on a bond of Twenty

      Thousand Dollars ($20,000) with Mr. Raymond Martinez as the Surety.

   3) Between 2010 and 2011, Mr. Beltran had numerous Court settings at which

      he appeared with his attorney, Raymond Martinez.

   4) On August 26, 2011, the District Clerk of Bexar County mailed two

      postcards, as was customary in Bexar County at the time, one mailed to Mr.

      Beltran, notifying him of his Court date on October 31, 2011, at 9:30am in th

      175th Judicial District Court.     The second postcard was mailed to Mr.

      Raymond Martinez on that same date notifying him of the same Court date.

   5) Due to a conflict in scheduling, Mr. Martinez contacted the Court and

      received permission to come to Court with Mr. Beltran on the following day,

      November 1, 2011.

   6) On November 1, 2011, Mr. Beltran appeared with Mr. Martinez.             Mr.

      Beltran decided to accept a plea bargain agreement on his case and entered a

      plea before the Court that same day.

                                          2
7) In order to provide time for probation to prepare a presentence investigation

   report, the sentencing of Mr. Beltran was delayed by the court until

   December 5, 2011, at 1:30pm.

8) Mr. Martinez and Mr. Beltran signed a copy of the Case Setting Form,

   stating that they acknowledged receipt of the setting on December 5, 2011,

   at 1:30pm. The form also noted that the case was set for "PSI" on that day.

9) On December 5, 2011, Mr. Martinez and Mr. Beltran appeared as had been

   previously ordered, however, they were informed by the Court staff that the

   PSI docket was being cancelled for that day and would be reset for some

   future date. No reset form was provided and the future sentencing date was

   not provided by the Court at that time either verbally or in writing.

10)      Some time after that, Mr. Martinez received a telephone call that the

   sentencing was being reset for January 9, 2012.           No card or written

   communication was provided. (RR Vol 1, Pg 19).             The Clerk, in her

   testimony, also confirmed that no written notice was sent to Mr. Beltran.

   (RR Vol 1, Pg 15).

11)      It is not, and was not customary at the time, for the Bexar County

   clerks to call Defendants to notify them of their Court dates.

12)      Mr. Martinez attempted to contact Mr. Beltran by phone, but was not

   successful in contacting Mr. Beltran in order to provide him notice of the

                                       3
      January 9, 2012, Court setting. Although the case was reset a couple of

      times thereafter, no notices were sent to Mr. Beltran to provide the basis for

      forfeiting his bond.

                              Summary of Argument

      If no actual notice of a Court setting is required in order to qualify for

exoneration of the appearance bond under Tex. Code Crim Proc Art 22.13 as ruled

by the trial Court in this case, then the bond is void as unconstitutional under the

14th amendment of the United States Constitution as well as under the Texas

Constitution Article I, Sections 13 and 19 as a violation of Due Process and the

Surety cannot be held liable for the bond forfeiture when a criminal Defendant

does not appear at a Court setting of which he has no notice.



                                     Argument

Standard of Review

      Bond forfeiture proceedings are criminal cases reviewed under civil

appellate rules. Tex. Code Crim. Proc. Ann. art. 44.44 (West 2006); Mendez v.

State, No. 03-12-00200-CV, 2013 Tex. App. LEXIS 13278, 2013 WL 5914142,

(Tex.App.--Austin Oct. 25, 2013, no pet.)(mem. op.). The State bears the burden of

proving forfeiture. Kubosh v. State, 241 S.W.3d 60, 63 (Tex.Crim.App. 2007).




                                           4
      "The essential elements of the State's cause of action in a bond

forfeiture proceeding are the bond and the judicial declaration of the forfeiture of

the bond, which is the judgment nisi." Id. at 63. "A judgment nisi is prima facie

proof that the statutory requirements have been satisfied and the burden is on the

defendant to affirmatively show otherwise." Alvarez v. State, 861 S.W.2d 878, 881

(Tex.Crim.App. 1992). Once the judgment nisi issues, "the defendant must then

prove that one of the statutory requirements of the judgment nisi has not been

satisfied . . . or prove one of the affirmative defenses specified by statute." Spears

v. State, 381 S.W.3d 667, 669 (Tex.App.--Eastland 2012, no pet.). "A judgment

nisi is a provisional judgment that is not final or absolute, but may become

final." Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App.

2008)."Nisi means 'unless,' so a judgment nisi is valid unless a party shows cause

why it should be withdrawn." Id. at 163. For purposes of the statute, "forfeiture" is

taken at the time of the judgment nisi and not the final judgment. Hernden v. State,

505 S.W.2d 546, 548 (Tex.Crim.App. 1974).

Argument

       Notice and an opportunity to be heard is one of the essential requirements of

due process under the Fourteenth amendment of the United States Constitution.

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624 (1951).




                                           5
With this in mind it would seem obvious that notice of a court setting is required

prior to revoking the bond of a Defendant.

      The very basis of the appearance bond system is that a Defendant posts a

certain amount of money in exchange for a promise to return to court when

ordered. Chapter 17 of the Texas Code of Criminal Procedure reads, "The clerk of

a court that does not provide online Internet access to that court's criminal case

records SHALL post in a designated public place in the courthouse notice of a

prospective criminal court docket setting as soon as the court notifies the clerk of

the setting." Tex. Code Crim. Proc. Art 17.085. (emphasis added). At the time of

the January 9, 2012, setting, which is the basis of the Judgment NISI, the Bexar

County court dockets were not available online. There was not a designated public

place in the courthouse where settings were posted. The practice of the Bexar

County clerk was to send a notice in the mail to Defendant's notifying them of

upcoming settings. (RR Vol 1, Pg 11). However, for whatever reason, that was not

done in this case. (RR vol 1, Pg 11)

       The State argued that no actual notice was required and that since there was

no evidence of uncontrollable circumstances as required under Section 3 of Article

22.13, that the surety was not eligible for exoneration of the bond . (RR Vol 1, Pg

29). However, if no actual notice is, in fact, required under Tex. Code Crim Proc

Art 22.13 of a Court setting, then the bond would necessarily be void as

                                          6
unconstitutional under the 14th amendment of the United States Constitution as

well as under the Texas Constitution Article I, Sections 13 and 19. Burns v. State,

861 S.W.2d 878 (Tex. Crim. App. 1993). If the bond is, therefore, invalid, then

exoneration of the bond is required under Section 1. Tex. Code Crim Proc Art

22.13.

         The State's argument, in fact, undermines the entire bail system, as the

paying of a bond is couched on appearing in court. Failing to provide notice to the

Defendant of a court date would completely undermine that entire system.

         In Bexar County, the normal method of providing service is for the District

Clerk to mail the notice. As stated by Ms. Gloria Tamayo, who worked in the

Bexar County District Clerk's office at the time, that did not happen in this case.

(RR Vol 1, Pg 11). The State intimates that maybe the clerk tried to call the

defendant. (RR Vol 1, Pg 30). Being as that is not the normal operating procedures

for the office and the impossibility of calling thousands of defendants on a monthly

basis, the idea that the clerk would have tried to give notice to the defendant by

phone is merely laughable. By the Clerk's own admission, the Defendant was not

provided any notice of the January 9, 2012, setting.

Application

         Both the Texas and United States Constitutions demand that a Defendant be

provided due process. Failure to provide notice of a Court hearing and then

                                            7
punishing a Defendant for failing to appear at that hearing does not meet that

requirement. The Court could have easily remedied this oversight by setting a

hearing on the case prior to issuing the Judgment NISI and sending the required

notice to Defendant. Had this been done, then the Defendant would have no

excuse for not appearing. However, that is not what was done in this case. In this

case, the Defendant appeared at every setting for which he received notice. After

cancelling the Defendant's sentencing hearing, the Court rescheduled the hearing

date, but did not provide notice to the Defendant. Upon his failure to appear at the

hearing for which he did not receive notice, the Court issued a Judgment NISI in

violation of Defendant's due process rights. The failure to provide Defendant with

his due process rights made the bond invalid and, therefore, requires exoneration of

the surety.


                         CONCLUSION AND PRAYER

      The Trial Court clearly abused it's discretion by violating Defendant's Due

Process rights.   This violation invalidated the bond and required exoneration.

WHEREFORE, PREMISES CONSIDERED, the Appellant submits that the

judgment of the trial court should, in all things, be REVERSED and the $20,000

bond paid by Appellant in order to appeal the Trial Court's erroneous decision

should be returned.



                                         8
    Respectfully submitted,

    /S/ Anthony J. Colton .
    Anthony J. Colton
    State Bar No. 24064564
    301 Fair Ave
    San Antonio, Texas 78223
    Phone: (210) 593-8717
    Fax: (866) 367-6071
    Attorney for the Appellant
    Raymond Martinez




9
                         CERTIFICATE OF SERVICE


      I, Anthony Colton, Attorney for Appellant, hereby certify that a true and

correct copy of the above and forgoing brief was mailed to the Bexar County

District Attorney’s Office on or about this the 27th day of July, 2015.




                                              /S/ Anthony J. Colton       .
                                              Anthony Colton
                                              Attorney for Appellant




                      CERTIFICATE OF COMPLIANCE


      I, Anthony Colton, Attorney for Appellant, hereby certify that this Appellate

brief in within the word limitations described in Rule 9.4(i) of the Texas Rules of

Appellate Procedure having a total of 1623 computer generated words excluding

the portions specifically excepted by the above cited rule.



                                              /S/ Anthony J. Colton       .
                                              Anthony Colton
                                              Attorney for Appellant




                                         10
