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



                                                        OPINION

          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

           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.
for Enriquez’s arrest and a judgment nisi3 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


          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).

                                                               2
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.




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