

Opinion filed August 23,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-11-00016-CR
                                                    __________
 
                               CHRISTOPHER
SPEARS, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee
 

                                   On
Appeal from the 85th District Court
                                                           Brazos
County, Texas
                                           Trial Court
Cause No. 09-02086-CRF-85
 
 

                                                                  O
P I N I O N
 
            This
is an appeal from a bail bond forfeiture proceeding.[1] 
Marco Steven Enriquez was arrested and charged with the offense of possession
of a controlled substance.[2] 
He and his surety, Christopher Spears, posted a bail bond in the amount of
$5,000 on the charge.  An indictment on the possession charge was filed on May
14, 2009, and a hearing on the case was set for August 27, 2009.  Enriquez did
not appear for the hearing on August 27, 2009.  A capias for Enriquez’s arrest
and a judgment nisi[3]
forfeiting the bond were issued on August 31, 2009, based upon Enriquez’s
failure to appear.
            As
the surety on the bond, appellant filed an answer seeking to be exonerated from
liability under the bond.  See Tex.
Code Crim. Proc. Ann. art. 22.13 (West 2009).  He also sought a
remittitur of all or part of the amount of the bond.  See Tex. Code Crim. Proc. Ann. art. 22.16
(West 2009).  The trial court conducted a bench trial on appellant’s claims on
August 4, 2010.  The trial court entered final judgment on September 24,
2010, declaring the judgment nisi final and awarding judgment in favor
of the State against appellant and Enriquez in the amount of $5,000.  Appellant
challenges the trial court’s judgment in a single issue.  We affirm.  
Analysis
In a bail bond forfeiture, the State has the burden of proof.  Kubosh v. State,
241 S.W.3d 60, 63 (Tex. Crim. App. 2007).  “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. (quoting Alvarez v. State, 861 S.W.2d 878, 880–81
(Tex. Crim. App. 1992)).  A trial court may take judicial notice of the judgment
nisi and the bond.  Id. at 64. A judgment nisi is prima facie
proof that the statutory requirements have been satisfied, and once a prima
facie case has been established, the defendant must then prove that one of the
statutory requirements of the judgment nisi has not been satisfied, Alvarez,
861 S.W.2d at 881, or prove one of the affirmative defenses specified by
statute. See Castaneda v. State, 138 S.W.3d 304, 323 (Tex. Crim. App. 2004);
Allegheny Cas. Co. v. State, 163 S.W.3d 220, 227 (Tex. App.—El Paso
2005, no pet.). 
In
his sole issue, appellant contends that the trial court abused its discretion
in denying his request for remittitur.  Article 22.16(b) provides that, “[f]or
other good cause shown and before the entry of a final judgment against the
bond, the court in its discretion may remit to the surety all or part of the
amount of the bond.”  Appellant’s remittitur contention relies upon the ground
for exoneration set out in Article 22.13(5)(B).  This provision states that the
defendant and the surety will be exonerated from liability for the forfeiture
of the bond if the principal is incarcerated in any jurisdiction in the United
States not later than the 270th day after the date of the principal’s failure
to appear in court on a felony charge.  Appellant asserts that he located
Enriquez in Georgia before the expiration of the 270th day but that officials
in Brazos County did not make the appropriate entry into a national criminal
database that would permit officials in Georgia to take Enriquez into custody.
Appellant
argues on appeal that the trial court abused its discretion by not remitting
the bond amount to appellant because the State prevented appellant from
exercising the exoneration ground cited above.  The trial court rejected
appellant’s contention at trial on the basis that it constituted the
affirmative defense of estoppel being asserted against the State.
We
conclude that the trial court did not abuse its discretion in denying
appellant’s request for remittitur.  We agree with the trial court’s conclusion
that appellant is essentially arguing that the State should be estopped from
seeking forfeiture of the bail bond.  Equitable estoppel generally does not
apply to governmental entities.  In re S.A.P., 156 S.W.3d 574, 577 (Tex.
2005).  Furthermore, the Court of Criminal Appeals noted several factors that
the trial court may consider in deciding a request for remittitur, including
whether the accused’s failure to appear in court was willful, whether the
surety received compensation for the risk of executing the bail bond, and
whether the surety will suffer extreme hardship in the absence of a
remittitur.  McKenna v. State, 247 S.W.3d 716, 719 (Tex. Crim. App.
2008).  There was no evidence pertaining to these matters.  On this record, a
reasonable trial court could have concluded that equity did not require any
remittitur of the bond amount.  Appellant’s sole issue is overruled.
This
Court’s Ruling
             The
judgment of the trial court is affirmed.
            
 
                                                                                                TERRY
McCALL
August 23, 2012                                                                     JUSTICE
Publish.  See Tex. R. App. P.  47.2(b). 
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




                [1]An appeal from a bond forfeiture proceeding originating
in a criminal case is a criminal matter with final state-court jurisdiction
vested in the Court of Criminal Appeals.  Safety Nat’l Cas. Corp. v. State,
305 S.W.3d 586, 588 (Tex. Crim. App. 2010).
 


                [2]Enriquez
is not a party to this appeal.


                [3]As
noted by the Court of Criminal Appeals in Safety Nat’l Cas. Corp. v. State,
273 S.W.3d 157, 163 (Tex. Crim. App. 2008): “[A] judgment nisi alone does not
authorize recovery of a bond amount by the State.  A judgment nisi is a
provisional judgment that is not final or absolute, but may become final.  Nisi
means ‘unless,’ so a judgment nisi is valid unless a party shows cause why it
should be withdrawn” (internal citation omitted).


