




Criminal Case Template



COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS


RAY MACDONALD D/B/A AIDA'S
AROUND THE CLOCK BAIL
BONDS,

                            Appellant,

v.

THE STATE OF TEXAS,

                            Appellee.

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No. 08-02-00245-CV

Appeal from the

171st District Court

of El Paso County, Texas

(TC# 2001BF009)

O P I N I O N


	This case presents the following question:  May a court grant the State a new trial
in a bond forfeiture proceeding?  In accordance with long-standing precedent, we answer
this question in the negative.
Factual and Procedural Background
	Jose Federico Castillo and Ray MacDonald, doing business as Aida's Around the
Clock Bail Bonds, executed a bail bond in the amount of $40,000 to secure Castillo's
appearance at trial on charges of indecency with a child and aggravated sexual assault of
a child.  When Castillo failed to appear, the trial court issued a judgment nisi.

	The court subsequently conducted a bond forfeiture hearing at which the State and
MacDonald appeared. (1)  On December 12, 2001, the trial court signed a "Final Order"
vacating the judgment nisi and ordering that the State take nothing.  On December 28,
2001, the State filed a "Motion for a New Trial or to Modify, Correct or Reform Its Prior
Ruling."  The court conducted a hearing on the motion for new trial, and on March 2,
2002, the court sent the parties a letter stating that it intended to set aside the final order
and find in favor of the State.  The court also stated that it would consider a reduction in
the amount of the bond and directed the parties to schedule a hearing, "if necessary,"
before March 4, 2002.  On March 4, 2002, the court signed an "Order Granting Plaintiff's
Motion for New Trial or To Modify Prior Ruling."  On the same date, the court signed a
"Modified Final Order on Judgment Nisi," decreeing that the bond was forfeited and
rendering judgment against Castillo and MacDonald for $40,000.
Issues on Appeal
	In his first of two issues on appeal, MacDonald argues that the court lacked
jurisdiction to grant the State's motion for new trial and that the granting of the motion
violated the constitutional prohibitions against double jeopardy.  He also argues that the
court erred by signing the March 4 orders because he did not have adequate notice and
therefore did not have an opportunity to make his double jeopardy objection.  As the State
notes, MacDonald did not raise any of these arguments in the trial court.  It is well settled,
however, that jurisdictional matters are not subject to waiver and may be raised at any
time by the parties or by the court.  See Ex parte Smith, 650 S.W.2d 68, 69 (Tex. Crim.
App. 1981); Methodist Hosps. v. Texas Workers' Comp. Comm'n, 874 S.W.2d 144, 149
(Tex. App.--Austin 1994, no writ).  Because we find the jurisdictional argument to be
dispositive, we need not consider the other issues raised by MacDonald or whether those
issues are subject to waiver.
Discussion
	It has long been the law in this state that bond forfeiture proceedings are governed
by civil rules.  See Tex. Code Crim. Proc. Ann. art. 22.10 (Vernon Supp. 2003)
(providing that such proceedings are "governed by the same rules governing other civil
suits"); Hart v. State, 13 Tex. Ct. App. 555, 557 (1883) (noting that such proceedings are
"governed in practice by the same rules as obtain in civil cases").  In civil suits, the trial
court may grant a new trial on the motion of either party or on the court's own motion. 
See Tex. R. Civ. P. 320.  If a timely motion for new trial is filed, the trial court has
plenary power to grant a new trial or to vacate or modify its judgment until thirty days
after the motion is overruled.  Tex. R. Civ. P. 329b(e).
	In this case, the State's motion for new trial was timely filed within thirty days
after the trial court's judgment was signed, and the trial court granted the motion within
the time allowed by the civil rules.  See Tex. R. Civ. P. 329b(a), (c), (d).  Thus, the State
argues that because bond forfeiture proceedings are governed by civil rules, the trial court
had plenary power to grant its motion.  We disagree.
	Although article 22.10 of the Code of Criminal Procedure states that a bond
forfeiture proceeding is governed by the same rules that govern civil suits, such a
proceeding is nevertheless a "criminal case."  Kutzner v. State, 75 S.W.3d 427, 429 (Tex.
Crim. App. 2002); State v. Sellers, 790 S.W.2d 316, 321 (Tex. Crim. App. 1990); State ex
rel. Vance v. Routt, 571 S.W.2d 903, 906 (Tex. Crim. App. 1978); Jeter v. State, 86 Tex.
555, 558-59, 26 S.W. 49, 49-50 (1894).  Article 22.10 merely prescribes the manner of
trial; it does not change the character of the case from criminal into civil.  Sellers, 790
S.W.2d at 321; Jeter, 86 Tex. at 558, 26 S.W. at 49.
	In criminal cases, there is no common law right to a new trial.  Banks v. State, 79
Tex. Crim. 508, 510, 186 S.W. 840, 841 (1916).  The right is purely statutory.  Id.  Texas
statutes previously provided that a new trial could not be granted if the judgment was in
favor of the defendant.  See Act of June 18, 1965, 59th Leg., R.S., ch. 722, 1965 Tex.
Gen. Laws 317, 476; Perry v. State, 14 Tex. Ct. App. 166, 166 (1883).  Construing these
statutes, the Court of Criminal Appeals and its predecessor consistently held that a new
trial may not be granted on the State's motion or on the court's own motion.  Dugard v.
State, 688 S.W.2d 524, 528 (Tex. Crim. App. 1985), overruled on other grounds by
Williams v. State, 780 S.W.2d 802 (Tex. Crim. App. 1989); Zaragosa v. State, 588
S.W.2d 322, 326-27 (Tex. Crim. App. 1979); Perry, 14 Tex. Ct. App. at 166; see also
Bacey v. State, 990 S.W.2d 319, 336 (Tex. App.--Texarkana 1999, no pet.).
	In 1883, the Texas Court of Appeals specifically held that the State cannot be
granted a new trial in a bond forfeiture proceeding.  Robertson v. State, 14 Tex. Ct. App.
211, 211 (1883); Perry, 14 Tex. Ct. App. at 166.  Robertson and Perry were based on two
premises.  First, statutory language prohibited new trials when the verdict was in favor of
the defendant.  Perry, 14 Tex. Ct. App. at 166.  Second, the State had no right to appeal in
a bond forfeiture proceeding.  Id.  As demonstrated below, both of these premises still
hold true.
	In recent decades, the Court of Criminal Appeals has briefly discussed Perry and
Robertson twice.  See Sellers, 790 S.W.2d at 321 n.5; Routt, 571 S.W.2d at 907.  In Routt,
the court had to decide whether the State was entitled to mandamus relief from a trial
court's erroneous judgment in a bond forfeiture proceeding.  The court first noted that the
State could not appeal the ruling.  Routt, 571 S.W.2d at 907.  Then, citing Perry and
Robertson, the court stated, "There is also authority for the proposition that the State may
not move for a new trial after the final bond forfeiture and that such an attempt is a
nullity."  Id.  The court therefore concluded that the State did not have another adequate
remedy for the court's erroneous ruling.  Id.  The issue presented in Sellers was whether
the State may appeal in a bond forfeiture proceeding.  To resolve this issue, the court
examined constitutional and statutory history.  The court noted that the Texas
Constitution of 1876 prohibited the State from appealing in criminal cases.  Sellers, 790
S.W.2d at 318.  Based on this prohibition, courts held that the State could not appeal in
bond forfeiture cases, in spite of a statute that expressly authorized the State to appeal in
such cases.  Id. at 318-19; see also State v. Ward, 9 Tex. Ct. App. 462, 462-63 (1880)
(holding that statute authorizing appeal did not render bond forfeiture proceedings civil or
negate constitutional prohibition on appeals by the State in criminal cases).  The
Legislature eventually acceded to the courts' insistence that bond forfeiture proceedings
are criminal cases and deleted the statutory provision that allowed the State to appeal. 
Sellers, 790 S.W.2d at 319.  After the Texas Constitution was amended to allow the State
to appeal certain rulings in criminal cases, the Legislature did not enact new legislation to
authorize appeals by the State in bond forfeiture proceedings.  See Tex. Const. art. V, §
26; Tex. Code Crim. Proc. Ann. art. 44.42 (Vernon 1979); Sellers, 790 S.W.2d at 321. 
Therefore, the Sellers Court held that the State has no right to appeal in these cases.  790
S.W.2d at 321-22.
	The court rejected the State's argument that it could appeal pursuant to article
22.10.  Id. at 321.  The State relied on Roberts v. State, in which the Fort Worth Court of
Appeals held that article 22.10 and Rule of Civil Procedure 320 authorized the State to
file a motion for new trial in a bond forfeiture proceeding.  See Roberts v. State, 749
S.W.2d 624, 625-26 (Tex. App.--Fort Worth 1988, no pet.).  In this context, the Sellers
Court stated:
 Perry and Robertson had relied upon Article 776 of the 1879 Code of
Criminal Procedure, providing that "[a] new trial can in no case be granted
where the verdict or judgment has been rendered for the defendant."  That
article eventually became Article 40.02 of the 1965 Code.  Although Article
40.02, supra, was not carried over verbatim into Rule 30 of the new Rules
of Appellate Procedure, effective September 1, 1986, that Rule nevertheless
provides for new trial only "upon motion of an accused."  In any event,
even assuming the State is currently authorized to seek a motion for new
trial in a bond forfeiture matter pursuant to Article 22.10 and Tex.R.Civ.P.,
Rule 320-a question we need not decide now-it is still a criminal, not a
civil, proceeding.

790 S.W.2d at 321 n.5.  The court thus left open the question of whether Perry and
Robertson are still good law.
	We believe that Perry and Robertson are still good law because we must construe
the current rule regarding new trials in criminal cases consistently with the prior statute
regarding new trials.
	As the Sellers Court noted, Perry and Robertson relied on article 776 of the 1879
Code.  Article 40.02 of the 1965 Code was identical to article 776, except that it used the
word "accused" in place of "defendant."  See Act of June 18, 1965, 59th Leg., R.S., ch.
722, 1965 Tex. Gen. Laws 317, 476.  In 1985, the Legislature granted the Court of
Criminal Appeals the power to repeal article 40.02 and other statutes governing criminal
procedure and to replace them with new rules of procedure.  See Act of June 14, 1985,
69th Leg., R.S., ch. 685, §§ 1-4, 1985 Tex. Gen. Laws 2472-2473.  But the Legislature
provided that in exercising this power, the Court of Criminal Appeals could not "abridge,
enlarge, or modify the substantive rights of a litigant."  Id. § 1, 1985 Tex. Gen. Laws at
2472.  The court first replaced article 40.02 with Rule 30 of the Texas Rules of Appellate
Procedure.  See Sellers, 790 S.W.2d at 321 n.5.  Rule 30 was later supplanted by Rule
21.1 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 21 Notes &
Comments.
	Rule 21.1 states, "New trial means the rehearing of a criminal action after the trial
court has, on the defendant's motion, set aside a finding or verdict of guilt."  Tex. R. App.
P. 21.1.  This language is not as clear in prohibiting the State from filing a motion for new
trial as the language of article 40.02.  But we cannot construe Rule 21.1 in a way that
would enlarge the right of the State to a new trial.  We therefore construe it, in accordance
with prior case law, not to authorize a motion for new trial by the State.  Cf. Davis v.
State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994) (construing former appellate rule
40(b)(1) in accordance with the statute it replaced so as not to enlarge a defendant's
substantive right to appeal).
	The State suggests that the trial court merely modified its prior judgment and that
it had inherent authority to do so.  The State points out that it requested the court to
modify the judgment as an alternative to granting a new trial, and the court labeled its
final judgment as a "Modified Final Order on Judgment Nisi."  We note, however, that on
the same day that it signed the "Modified Final Order on Judgment Nisi," the court also
signed an "Order Granting Plaintiff's Motion for New Trial or To Modify Prior Ruling."  
This order states that a "new trial should be granted" and that the "Motion for New Trial
filed by [the State] is hereby GRANTED."  Thus, it is clear that the court granted the
State a new trial. (2)
	Noting that mandamus relief has been granted to correct erroneous rulings in bond
forfeiture cases, the State argues that it is judicially inefficient to prohibit trial courts from
correcting their own errors.  This court is not the proper forum for this argument.  The
Sellers Court suggested that the Legislature is constitutionally empowered to grant a right
of appeal to the State in bond forfeiture proceedings.  790 S.W.2d at 319.  The
Legislature has the same power with regard to motions for new trial.
 For the reasons stated herein, MacDonald's first issue on appeal is sustained, the
March 4, 2002 "Order Granting Plaintiff's Motion for New Trial or To Modify Prior
Ruling" and "Modified Final Order on Judgment Nisi" are vacated.  We need not reach
the remaining issue on appeal.

Conclusion
	The trial court's Final Order of December 12, 2001 is affirmed.  The Order
Granting Plaintiff's Motion for New Trial or To Modify Prior Ruling and Modified Final
Order on Judgment Nisi of March 4, 2002 are vacated.

						SUSAN LARSEN, Justice
May 1, 2003

Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
1. At the hearing, MacDonald asserted that the bond was executed to secure Castillo's
appearance under an indictment for offenses that occurred in 1994.  After the bond was executed,
the State dismissed that indictment and indicted Castillo for offenses that occurred in 1999.  
MacDonald argued that the bond was not applicable to the second indictment.  The State argued,
and an assistant district attorney testified, that the indictments were for the same offenses.
2. In spite of the prohibition against sua sponte new trials, there are cases indicating that
trial courts possess inherent power to change some of their rulings in criminal cases.  See, e.g.,
Awadelkariem v. State, 974 S.W.2d 721, 728-29 (Tex. Crim. App. 1998) (holding that a trial
court may rescind an order granting defendant's motion for new trial within 75-day-period
allowed for ruling on the defendant's motion).  But in cases that have recognized this power, the
court exercised the power within the time for ruling on the defendant's motion for new trial.  See,
e.g., Ware v. State, 62 S.W.3d 344, 355 n.5 (Tex. App.--Fort Worth 2001, pet. ref'd).  When the
defendant does not file a motion for new trial and no party files a notice of appeal, it is unclear
how long a trial court has "plenary power" over its judgment in a criminal case.  See id.

