                                                                     ACCEPTED
                                                                 03-15-00121-CR
                                                                         5184558
                                                      THIRD COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                                                            5/6/2015 11:26:48 PM
                                                               JEFFREY D. KYLE
                                                                          CLERK




              NO. 03-15-00121-CR                 FILED IN
                                          3rd COURT OF APPEALS
          IN THE COURT OF APPEALS             AUSTIN, TEXAS
          THIRD DISTRICT OF TEXAS         5/6/2015 11:26:48 PM
              AT AUSTIN, TEXAS              JEFFREY D. KYLE
                                                  Clerk


                 TOM BENSON,
                Defendant-Surety,
                   Appellant,

                       vs.

            THE STATE OF TEXAS,
                  Appellee.

Appealed from the County Court at Law Number One
           Sitting at Travis County, Texas
         Trial Court No. C-1-CV-14-002294
       The Honorable Todd Wong, Presiding

             APPELLANTS' BRIEF




                                               TOM BENSON
                                      Texas Bar No. 02170500
                                      900 Jackson St., Ste. 750
                                     Dallas, Texas 75202-4461
                                    (214) 742-9898 Telephone
                                          (214) 742-9879 Fax
                                      tomrbenson@gmail.com

                                      APPELLANT PRO SE
                 IDENTITY OF PARTIES AND COUNSEL


Appellant                     Counsel (Trial and Appeal)

Tom Benson                           Pro Se
Texas Bar No. 02170500
900 Jackson St., Ste 750
Dallas, Texas 75202-4461
(214) 742-9898 Telephone
(214) 742-9879 Fax
tomrbenson@gmail.com




Appellee                      Counsel (Trial and Appeal)

The State of Texas            Tim Labadie
                              Assistant County Attorney
                              Travis County
                              Texas Bar No. 11784853
                              P.O. Box 1748
                              Austin, Texas 78767-1748
                              (512) 854-9513 Telephone
                              (512) 854-4808 Fax
                              tim.labadie@traviscountytx.gov




                                ii
            STATEMENT CONCERNING ORAL ARGUMENT


      Because this appeal contains arguments based upon established law,

Appellant does not believe that oral argument would be helpful to the Court.




                                        iii
                       TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL............................ ii

STATEMENT CONCERNING ORAL ARGUMENT ................... iii

INDEX OF AUTHORITIES .......................................... v

STATEMENT OF THE CASE ...................................... vii

POINTS OF ERROR PRESENTED ................................. viii

STATEMENT OF FACTS ........................................... 1

POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING
                  THE STATE'S MOTION FOR SUMMARY
                  JUDGMENT . ................................. 3

POINT OF ERROR 1: .............................................        3
    Standard of Review . ...........................................   3
    Argument and Authority . ......................................    5
    STATE PRESENTS PRIMA FACIE CASE ........................           5
    BURDEN SHIFTS TO SURETY ................................           5
    AFFIRMATIVE DEFENSE PROVIDED BY art. 22.13(a)(5) ........          6
    SURETY'S SUMMARY JUDGMENT PROOF....................                7
    RELIEF GRANTED BY TRIAL COURT.........................             9

CONCLUSION . .................................................. 10

REQUEST FOR RELIEF..................•........................ 10

CERTIFICATE OF COMPLIANCE ................................. 11

CERTIFICATE OF SERVICE ...................................... 12

APPELLANT'S APPENDIX ........................................ 13

                                  lV
                         INDEX OF AUTHORITIES
CASES

Alvarez v. State, 861 S.W. 2d 878, 881 (Tex. Cr. App. 1992)............ 3, 5, 9

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)
.................................................................. 4

Deckard v. State, 605 S.W.2d 918 (Tex. Cr. App.1980) .................... 5

Deckard v. State, 615 S.W.2d 717, 718 (Tex. Cr. App. 1981)................ 5

Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d
41, 47 (Tex.1965) . .................................................. 4

Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995) ... 4

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004) ....... 3

Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984)................. 9

Nichols v. Smith, 507 S.W.2d 518, 520 (Tex. 1974)...................... 4, 5

Palmer v. Enserch Corp., 728 S.W.2d 431, 436 (Tex. App. - Austin 3rd
Dist.1987, writ re.f'd n.r.e. )............................................ 5

Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997) ......... 4

Southwestern Blee. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002)...... 4

Texas Beef Cattle Co. v. Green, 921 S.W. 2d 203, 212 (Tex. 1996)........... 7

Tocher v. State, 517 S.W.2d 299, 301 (Tex. Cr. App.1975) ................. 5




                                       v
TEXAS RULES OF CIVIL PROCEDURE

Tex. R. Civ. P. 166a(c) ........................... .................. 3, 4


TEXAS CODE OF CRIMINAL PROCEDURE

art. 22.10 . ......................................................... 3

art. 22.13(5)(A)(l) . ............................................... 6, 7

Art. 22.13(a)(5)(A) ........................................... 2, 6, 7, 9

art. 22.13(b) .................................................... 6, 10


OTHER AUTHORITY

2 ROY W. McDONALD, TEXAS CIVIL PRACTICE § 9:44, at 378 (1992)
.................................................................. 7




                                    VI
                         STATEMENT OF THE CASE

       Nature of the case. Appellee, the State of Texas, ["State"] sued appellant to

enforce the forfeiture of a bail bond. (CR. 4 ). Appellant, ["Surety"] filed a general

denial and asserted a affirmative defense provided by statute. (CR. 14-15).

       Course of proceedings. The State moved for a summary judgment. (CR. 9-

13). The Surety filed a response and provided additional summary judgment

proof. (CR. 16-23).

       Trial court disposition. The trial court granted the State's Motion for

Summary Judgment and entered a final judgment on January 21, 2015. (CR. 24-

25).




                                         Vil
       POINTS OF ERROR PRESENTED




            POINT OF ERROR I

   THE TRIAL COURT ERRED BY GRANTING
THE STATE'S MOTION FOR SUMMARY JUDGMENT




                  viii
                                 NO. 03-15-00121-CR
                             IN THE COURT OF APPEALS
                             THIRD DISTRICT OF TEXAS
                                 AT AUSTIN, TEXAS


TOM BENSON,
Defendant-Surety,
     Appellant,
vs.

THE STATE OF TEXAS,
    Appellee.


                                  APPELLANTS' BRIEF


                                STATEMENT OF FACTS

      On November 29, 2013, Brian Roy Whipple, date ofbirth 1 XX/XX/XXXX

was released from jail on a bail bond in the amount of $5,000.00 for a

misdemeanor offense, executed by Tom Benson, as Surety. (CR. 4-5). On

February 14, 2014, Mr. Whipple, the defendant and the principal on the bond

executed by the Surety, was required to personally appear in the County Court at

Law No. 7 of Travis County. (CR. 4). He failed to appear as required. (CR. 4).

A judgment nisi was properly issued. (CR. 4). On December 4, 2014, the State

filed its Motion for Summary Judgment and summary judgment proof consisting

      1
          Date of Birth has been redacted pursuant to Tex. R. Appellant P. 9.
of the bond and the judgment nisi. (CR. 9-13). The State's motion requested a

judgment for the penal sum of the bond $5,000.00 and court costs. After being

properly served with citation, Surety answered2 with a general denial and asserted

an affirmative defense provided by art. 22.13(a)(5)(A) 3 • (CR. 14-15). The Surety

filed a response to the State's Motion again asserting the affirmative defense under

art. 22.13(a)(5)(A) that the Defendant-Principal, Brian Roy Whipple was

incarcerated in the Clark County Detention Center, Las Vegas, Nevada on June 29,

20144 , a jurisdiction within the United States, within 180 days from the date of his

failure to appear, February 14, 2014. (CR. 16-20). The Surety provided additional

summary judgment evidence which was attached to, and incorporated into, his

response, in the form of documentary evidence (CR. 18 ,-i,-i 11 and 12) and (CR.

21-23) and evidence provided by judicial notice. (CR. 18 ,-i,-i 11 and 13). The State

did not file any reply to the Surety's response or summary judgment evidence.

(CR. 1-45). The trial court granted the State's Motion for Summary Judgment and

entered a final judgment against the Surety for $5,000.00 plus costs of court. (CR.



       2
           Surety filed and Original Answer and a First Amended Answer.
       3
           All statutory references are to Tex. Code Crim. Proc., unless otherwise noted.
       4
           The date of birth for Brian Whipple who is the principal on the bail bond and Brian
Whipple who was incarcerated in the Clark County Detention Center, Las Vegas, Nevada are
identical.

                                                 2
24-25). No post judgment motions were filed. The Surety timely filed a notion of

appeal. (CR. 26-28). This brief will be timely if filed on or before May 5, 2015.


                       SUMMARY OF THE ARGUMENT

POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING
                  THE STATE'S MOTION FOR SUMMARY
                  JUDGMENT


      1)     Because the Trial Court was presented an the affirmative defense and

summary judgment evidence supporting every element of the affirmative defense

the Trial Court erred in granting the State's motion.



                                 ARGUMENT

POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING
                  THE STATE'S MOTION FOR SUMMARY
                  JUDGMENT


Standard of Review

      Summary judgment proceedings in a bail bond forfeiture case are governed

by the same rules as in civil cases. Alvarez v. State, 861 S.W. 2d 878, 881 (Tex.

Cr. App. 1992), citing, art. 22.10 and Tex. R. Civ. P. 166a(c).

      The Court reviews the summary judgment de novo. Joe v. Two Thirty Nine



                                          3
Joint Venture, 145 S.W.3d 150, 156 (Tex.2004).

      In this traditional summary judgment case, the issue on appeal is whether

the State, as movant, met its summary judgment burden by establishing that no

genuine issue of material fact exists and that the State is entitled to judgment as a

matter oflaw. Tex. R. Civ. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73

S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 (Tex.1979). The burden of proof is on the State, and all doubts

about the existence of a genuine issue of material fact are resolved against it.

Southwestern Elec. Power Co., 73 S.W.3d at 215; Science Spectrum, Inc. v.

Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San

Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). In deciding

whether there is a material fact issue precluding summary judgment, all conflicts

in the evidence should be disregarded and the evidence favorable to the Surety, the

nonmovant, should be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co.,

896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the State's position will not

be considered unless it is uncontroverted. Great Am., supra, 391 S.W.2d at 47.

      When a defendant raises an affirmative defense in opposition to a motion

for summary judgment, he must present sufficient summary judgment proof to

raise a fact issue on each element of his affirmative defense. Nichols v. Smith, 507

                                           4
S.W.2d 518, 520 (Tex. 1974); Palmer v. Enserch Corp., 728 S.W.2d 431, 436

(Tex. App. -Austin 3rd Dist.1987, writ ref'd n.r.e.).




Argument and Authority

                   STATE PRESENTS PRIMA FACIE CASE

      The State unquestionably presented a prima facie case in its motion for

summary judgment. The State was required to produce evidence of a bail bond

and a judgment nisi. Alvarez, supra, 861S.W.2d at 880-881, 887, 889 citing,

Deckard v. State, 615 S.W.2d 717, 718 (Tex. Cr. App. 1981); Tocher v. State, 517

S.W.2d 299, 301 (Tex. Cr. App.1975); Deckard v. State, 605 S.W.2d 918 (Tex. Cr.

App.1980). It did so. (CR. 12-13).

                        BURDEN SHIFTS TO SURETY

      The burden then shifted to the Surety to respond to the State's Motion and if

an affirmative defense is pied in his response it must be supported by summary

judgment proof on every element of the affirmative defense. Nichols, supra, 507

S.W.2d at 520; Palmer, supra, 728 S.W.2d at 436. (CR. 14).

      In his response, the Surety alleges that the Defendant-Principal, Brian Roy

Whipple was incarcerated in the Clark County Detention Center, Las Vegas,

Nevada, on June 29, 2014, a jurisdiction within the United States, and it was


                                          5
within 180 days from the date of his failure to appear as required on February 14,

2014 and that these facts give rise to an affirmative defense provided by art.

22.13(a)(5)(A)(l). (CR. 17).

         AFFIRMATIVE DEFENSE PROVIDED BY art. 22.13(a)(5)

      The applicable language in Tex. Code Crim. Proc. art. 22.13 provides:

"Art. 22.13. CAUSES WHICH WILL EXONERATE.

(a) The following causes, and no other, will exonerate the defendant and his

sureties, if any, from liability upon the forfeiture taken: .....

5. The incarceration of the principal in any jurisdiction in the United States:

(A) in the case of a misdemeanor, at the time of or not later than the 180th day

after the date of the principal 's failure to appear in court;

(B) in the case of a felony, at the time of or not later than the 270th day after the

date of the principal 's failure to appear in court.

(b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to

pay costs of court, any reasonable and necessary costs incurred by a county to

secure the return of the principal, and interest accrued on the bond amount from

the date of the judgment nisi to the date of the principal 's incarceration.

      Although the statute does call it an affirmative defense it meets the

definition of one. An affirmative defense does not seek to defend by merely

                                            6
denying the plaintiff's claims, but rather seeks to establish "an independent reason

why the plaintiff should not recover." Texas Bee/Cattle Co. v. Green, 921S.W.2d

203, 212 (Tex. 1996) citing, 2 ROY W. McDONALD, TEXAS CIVIL PRACTICE

§ 9:44, at 378 (1992).

       The affirmative defense provided by art. 22.13(a)(5)(A)(l) raised in

Surety's amended answer5 and the response consist of the following elements: (1)

Incarceration of principal on bond; (2) within any jurisdiction in the United States;

(3) principal charged with misdemeanor; (4) Incarceration within 180 days from

the date the principal fail to appear in court.

                   SURETY'S SUMMARY JUDGMENT PROOF

       There is summary judgment proof in the record regarding each of the

elements required by art. 22. l 3a)(5)(A):

       1. Incarceration of principal, Brian Roy Whipple.

       Supplied by Exhibit "l ",page 3 (CR. 23) which is an incarceration

verification letter from the Sheriff of Clark County Nevada stating that (1) that

Brian Whipple DOB: XXXX was incarcerated in the Clark County Detention

Center, Las Vegas, Nevada; and (2) on June 29, 2014. The date of birth for Brian



       5
         Surety requested the Trial Court to take judicial notice of his First Amended Answer.
(CR.18, i/ 13 (6)).

                                               7
Whipple on the bail bond in this case is XX-XX-XXXX. (CR. 5 and 13). The

date of birth specified in the incarceration verification letter and the date of birth

specified on the bail bond in this case are the same. (CR. 5, 13 and 23).

      2. Within any jurisdiction in the United States.

      Supplied by requests for judicial notice that: Clark County is located in the

State of Nevada; the City of Las Vegas, Nevada is located in Clark County; and

both the City of Las Vegas, Nevada and Clark County, Nevada are jurisdictions

located within the United States. (CR. 18, ~ 13 (1 )(2)(3)).

      3. Principal, Brian Whipple is charged with a misdemeanor.

      Supplied by the judgment nisi. (CR. 4 and 12).

      4. Incarceration of Brian Whipple within 180 days from the date the he

failed to appear in court.

      The date he failed to appear in Court was February 14, 2014, and this is

shown on the judgment nisi. (CR. 4 and 12). The date of his incarceration was

June 29, 2014. This is shown on Exhibit "1 ",page 3 (CR. 23). The Trial Court

was requested to take judicial notice that the period of time between February 14,

2014 and June 29, 2014 was less than 180 days. (CR. 18, ~ 13 (5).

      Reviewing this summary judgment evidence, the genuine issue of fact to be

resolved by a trier of fact is whether or not the Brian Whipple specified in the

                                           8
verification letter from the Sheriff of Clark County Nevada is the Brian Whipple

that is the principal on the bond in this case. The date of birth, first and last name

match, but there is no middle name specified. These matches create an inference

supporting that the correct defendant is specified in the letter. The lack of a

middle name creates an inference of doubt that the correct defendant is specified

in the letter. For the purposes of the summary judgment only, the inferences are

resolved in the favor of the Surety. "Every reasonable inference from the evidence

must be indulged in favor of the non-movants and any doubts resolved in their

favor." Alvarez, supra, 861 S.W. 2d at 881, citing, Montgomery v. Kennedy, 669

S.W.2d 309, 311 (Tex.1984). Faced with these conflicting inferences, a material

fact issue exists and the State's Motion should have been denied and the Trial

Court erred by no doing so.

                    RELIEF GRANTED BY TRIAL COURT

      The judgment entered by the Trial Court was for the face amount of the

bond $5,000.00 plus costs of court. Art. 22. l 3(a)(5)(A) and the summary

judgment proof presented, effectively mitigates the legal consequences of the

State's prima facie case for forfeiture. Where the conditions specified in art.

22.13(a)(5) are proved, the Surety is exonerated from liability of the forfeiture,

except costs of court, any reasonable and necessary costs incurred by a county to

                                           9
secure the return of the principal, and interest accrued on the bond amount from

the date of the judgment nisi to the date of the principal 's incarceration. See art.

22.13(b). The Trial Court of course will be free on remand to resolve the facts

regarding the Surety's affirmative defense, and if proved, the amount of expenses,

costs and interest the State is due.

                                      CONCLUSION

       Faced with the Surety's response6 and the summary judgment proof before

the court, the only proper action was to deny the State's Motion. The case before

this court is not to determine the correctness of, or application of, the Surety's

affirmative defense, but the whether the Trial Court erred in granting the State's

Motion in light of the surety's response and summary judgment evidence.

       At heart, this case is very simple. Granting a summary judgment despite a

pled affirmative defense by the non-movant supported with summary judgment

evidence is an error that caused the trial court to render an improper judgment

which should be reversed and remanded to the trial court.

                                REQUEST FOR RELIEF

       Appellant respectfully request that this Court reverse the judgment of the



       6
          Surety did not move for summary judgment on his affirmative defense, leaving it to be
resolved later.

                                               10
trial court, remand the cause to the trial court and grant such other and further

relief as to which he has shown himself entitled.



                                 Respectfully submitted,

                                 /s/ Tom Benson

                                 Tom Benson
                                 Texas State Bar No. 02170500
                                 900 Jackson St., Suite 750
                                 Dallas, Texas 75202-4461
                                 (214) 742-9898 Telephone
                                 (214) 742-9879 Fax
                                 tomrbenson@gmail.com

                                 APPELLANT PRO SE



                       CERTIFICATE OF COMPLIANCE

       I certify that this document was produced on a computer using
WordPerfectX7 and contains approximately 2,089 words as determined by the
computer software's word-count function, excluding the sections of the document
listed in Texas Rules of Appellate Procedure 9.4(i)(l).

                                 /s/ Tom Benson

                                 Tom Benson




                                          11
                        CERTIFICATE OF SERVICE

      I certify that on May 6, 2015, a true and correct copy of the foregoing
Appellants' Brief and Appendix as corrected was served on appellee's attorney,
Tim Labadie, Assistant County Attorney by email to
tim.labadie@traviscountytx.gov.


                               Isl Tom Benson

                               Tom Benson




                                       12
                          APPELLANT'S APPENDIX


ITEM                                             BOOKMARK NO.

Trial Court's Judgment dated January 21, 2015            1

Tex. R. Civ. P. 166a(c)                                  2

Tex. Code Crim. Proc. 22.10                              3

Tex. Code Crim. Proc. 22.13                              4

Bail Bond                                                5

Letter from the Sheriff of Clark County Nevada           6

State's Motion For Summary Judgment and proof            7

Surety's First Amended Original Answer                   8

Surety's Summary Judgment Response and proof             9




                                       13
...

                                 NO. C-1-CV-14-002294     FILED f OR RECO~D
                            (CRIMINAL NO. C-1-CR-13-501684).
                                                                        ZOl5 JAN 21 AH 9: Otl
THE STATE OF TEXAS                             §                    COifJ°tiTY COURT AT LAW
                                               §                                "'NA OcSEAUVo,.,
                                                                                COUNTY CLERK
v.                                             §                        TRAVIS COUNTY, TEXAsNO. 7
                                               §
BRIAN ROY WHIPPLE and                          §
TOM BENSON                                     §                      TRAVIS COUNTY, TEXAS

                                    FINAL JUDGMENT

          On this day, the Court heard Plaintiff's Motion for Summary Judgment,

considered the summary judgment evidence, which included a certified copy of the

bond made on August 29, 2013, by Brian Roy Whipple, as Principal, and Tom Benson,

as Surety, payable to the State of Texas in the amount of $5,000.00 and a certified copy

of the order forfeiting that bond. The Court finds from the evidence that this bond

forfeited on February 14, 2014, when Brian Roy Whipple failed to appear in court in

cause number C-1-CR-13-501684 after his/her name was distinctly called at the

courthouse door.                                       Illllll lllll lllll
                                                       000939084
                                                                             lllll 111111111111111111111111111111111
          The Court therefore finds that the evidence establishes as a matter of law there

 are no genuine issues of material fact as to any of the elements of the State's cause of

 action and grants Plaintiff's Motion for Summary Judgment.

          The Court also finds from its file that citation was served on Brian Roy Whipple,

 Principal-Defendant, and returned in accordance with Chapter 22 of the Code of Criminal

 Procedure. The Court further finds that Brian Roy Whipple failed to appear or answer

 within the time prescribed by law, and is in default. Further, the citation served, with the


 321316                                                   FINAL JUDGMENT (SURETY BOND)- PAGE 1



                                  Appellants Brief Page 014
                        •
officer's return thereon, has been on file with the Clerk of the Court for at least ten days

exclusive of the day of filing and the day of judgment.

         Therefore, the Court orders that:

         1. The State of Texas, through its County Attorney of Travis County, recover,
            jointly and severally, the sum of $5,000.00 from Brian Roy Whipple, as
            Principal-Defendant, and Tom Benson, as Surety-Defendant;

         2. Costs of suit are taxed against Brian Roy Whipple and Tom Benson, jointly and
            severally;

         3. The State of Texas, shall have all writs of execution and other process necessary
            to enforce this judgment; and

         4. This judgment finally disposes of all claims and all parties and is appealable.

         SIGNED January 21, 2015.




                       CERTIFICATE OF LAST KNOWN ADDRESS

       I, Tim Labadie, attorney of record for the State of Texas, Plaintiff, hereby certify
by my signature below that the last known address of Brian Roy Whipple is 1405 N
Interstate 35, Round Rock, TX 78664-2924.




                                                    Assistant County Attorney



321316                                                    FINAL JUDGMENT (SURETY BOND)- PAGE 2



                                  Appellants Brief Page 015
                     RULE 166a(c). SUMMARY JUDGMENT


(c) Motion and Proceedings Thereon. The motion for summary judgment shall

state the specific grounds therefor. Except on leave of court, with notice to

opposing counsel, the motion and any supporting affidavits shall be filed and

served at least twenty-one days before the time specified for hearing. Except on

leave of court, the adverse party, not later than seven days prior to the day of

hearing may file and serve opposing affidavits or other written response. No oral

testimony shall be received at the hearing. The judgment sought shall be rendered

forthwith if (i) the deposition transcripts, interrogatory answers, and other

discovery responses referenced or set forth in the motion or response, and (ii) the

pleadings, admissions, affidavits, stipulations of the parties, and authenticated or

certified public records, if any, on file at the time of the hearing, or filed thereafter

and before judgment with permission of the court, show that, except as to the

amount of damages, there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law on the issues expressly set

out in the motion or in an answer or any other response. Issues not expressly

presented to the trial court by written motion, answer or other response shall

not be considered on appeal as grounds for reversal. A summary judgment may be

based on uncontroverted testimonial evidence of an interested witness, or of an




                                Appellants Brief Page 016
expert witness as to subject matter concerning which the trier of fact must be

guided solely by the opinion testimony of experts, if the evidence is clear, positive

and direct, otherwise credible and free from contradictions and inconsistencies,

and could have been readily controverted.




                              Appellants Brief Page 017
                 TEXAS CODE OF CRIMINAL PROCEDURE
                           ARTICLE 22.10


Art. 22.10. SCIRE FACIAS DOCKET. When a forfeiture has been

declared upon a bond, the court or clerk shall docket the case upon

the scire facias or upon the civil docket, in the name of the State

of Texas, as plaintiff, and the principal and his sureties, if any,

as defendants; and, except as otherwise provided by this chapter,

the proceedings had therein shall be governed by the same rules

governing other civil suits.




                                Appellants Brief Page 018
                 TEXAS CODE OF CRIMINAL PROCEDURE
                            ARTICLE 22.13


Art. 22.13. CAUSES WHICH WILL EXONERATE. (a) The following

causes, and no other, will exonerate the defendant and his sureties, if any, from

liability upon the forfeiture taken:

1. That the bond is, for any cause, not a valid and binding undertaking in law. If it

be valid and binding as to the principal, and one or more of his sureties, if any,

they shall not be exonerated from liability because of its being invalid and not

binding as to another surety or sureties, if any. If it be invalid and not binding as to

the principal, each of the sureties, if any, shall be exonerated from liability. If it be

valid and binding as to the principal, but not so as to the sureties, if any, the

principal shall not be exonerated, but the sureties, if any, shall be.

2. The death of the principal before the forfeiture was taken.

3. The sickness of the principal or some uncontrollable circumstance which

prevented his appearance at court, and it must, in every such case, be shown that

his failure to appear arose from no fault on his part. The causes mentioned in this

subdivision shall not be deemed sufficient to exonerate the principal and his

sureties, if any, unless such principal appear before final judgment on the bond to

answer the accusation against him, or show sufficient cause for not so appearing.




                                Appellants Brief Page 019
4. Failure to present an indictment or information at the first term of the court

which may be held after the principal has been admitted to bail, in case where the

party was bound over before indictment or information, and the prosecution has

not been continued by order of the court.

5. The incarceration of the principal in any jurisdiction in the United States:

(A) in the case of a misdemeanor, at the time of or not later than the 180th day

after the date of the principal 's failure to appear in court; or

(B) in the case of a felony, at the time of or not later than the 270th day after the

date of the principal 's failure to appear in court.

(b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to

pay costs of court, any reasonable and necessary costs incurred by a county to

secure the return of the principal, and interest accrued on the bond amount from

the date of the judgment nisi to the date of the principal 's incarceration.




                                Appellants Brief Page 020
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                    Appellants Brief Page 021
..




     XXX
                                                                                  Filed: 12/4/201412:42:36 PM
                                                                                              Dana DeBeauvoir
                                                                                            Travis County Clerk
                                    NO. C-1-CV-14--002294                                     C-1-CV-14-002294
                                                                                                    Anita Durar
                               (CRIMINAL NO. C-1-CR-13-501684)

THE STATE OF TEXAS                                  §                 COUN1YCOURTATLAW
                                                    §
v.                                                  §                                           N0.7
                                                    §
BRIAN ROY WHIPPLE and                               §
TOM BENSON                                          §                  TRAVIS COUNlY, TEXAS

                   PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE COURT:

         Plaintiff, the State of Texas, files this motion for summary judgment1 and in

support thereof would respectfully show the Court the following:

I.       INTRODUCTION

         This is a bond forfeiture proceeding brought by the State of Texas pursuant to

Tex. Code Crim. Pro. article 22.02 In order to be entitled to a forfeiture of a bond,

Plaintiff must show (1) a valid bond executed by the surety; (2) that the defendant's
                                                                                                            '=t
name was distinctly called at the courthouse door; and (3) the defendant failed to                          :-1
                                                                                                            l=c
                                                                                                            :===
appear within a reasonable-time of that call. Burns v. State, 861 S.W.2d 878, 888                   (Tex.
                                                                                                            ·-
                                                                                                            '-(
                                                                                                            1-.
Crim. App. 1993).

                                                                                  -~
                                                                                                             -·
                                                                                                             --
                                                                                                             -<
                                                                                                            iiiiiii ~
                                                                                                                        I




         The summary judgment evidence, which is comprised of the appearance bond = 11


executed by Defendants2 and the order forfeiting that bond,3 establishes each of these                      =2
                                                                                                            --
                                                                                                                       II




elements as a matter of law. The bond establishes the first element of the State's bond

forfeiture suit and the Judgment Nisi is priina fade proof that of the second and third                     iiiiiii
                                                                                                            !!!!!!!!



         Brian Roy Whipple was served with citation, has not made an appearance and is in default
2        A certified copy of the bond is attached hereto as Exhibit A.
3        A certified copy of the Judgment Nisi is attached hereto as Exhibit 8.

321313
                                         Pl.AINTin's MOTION FOR SUMMARY JUDGMENT (SURETY BoNo)- PACI 1


                             Appellants Brief Page 023
elements. Burns v. State, 861 S.W.2d at 887. Thus, the court must presume that the

Judgment Nisi is in accordance with the statutory requirements, unless it affirmatively

appears otherwise. Id.

    IL    THE SUMMARY JUDGMENT EVIDENCE

          On August 29, 2013, Brian Roy Whipple, as Principal, and Tom Benson, as

Surety, executed a bond payable to the State of Texas in the amount of $5,000.00.• This

    bond, which was a valid and binding undertaking in law, was conditioned on Brian

    Roy Whipple's personal appearance before the county court of Travis County in cause

    no. C-1-CR-13-501684.5 On February 14, 2014, Brian Roy Whipple failed to appear when

    this case was called for triaJ.6 Thereafter, Brian Roy Whipple's name was called

    distinctly at the door of the courthouse and he was given a reasonable time after which

    to appear.7 Brian Roy Whipple, however, failed to appear and the bond made by

    Defendants was forfeited.&

          This evidence establishes as a matter of law there are no genuine issues of

material fact as to any of the elements of the State's cause of action.

IIL       PRAYER

          The State of Texas, Plaintiff, respectfully requests that the Court grant this

motion and render judgment against Brian Roy Whipple, as Principal, and Tom Benson,

as Surety, jointly and severally, in the amount of $5,000.00 plus court costs.


4        See Exhibit A.
5        See Exhibit A.
6        See Exhibit B.
1        See Exhibit B.
8        See Exhibit B.

321313

                                      PlAJNTJpp'5 MonoN l'OR SUMMAR\' JU0CM1!flrt' (SuaEn BoNo)- PAGI! 2


                          Appellants Brief Page 024
                                          Respectfully submitted,

                                          DAVID ESCAMILLA
                                          TRAVIS~CO
                                                  ATIO~
                                                                   c..-.9 ••
                                          By:
                                                    Ti     badie
                                                    Assistant Travis County Attorney
                                                    State Bar No. 11784853
                                                    P.O. Box 1(48
                                                    Austin, TeXa5 78767
                                                    (512) 854-9513
                                                    (512) 854-4808 (fax)

                                 NOTICE OF HEARING

         Plaintiff's Motion for Summary Judgment is set for hearing on January 21, 2015
at9:00a.m.                                ~-...C..

                                            ·       badie

                              CERTIFICATE OF SERVICE

        I hereby certify by my signature above that, on December 4, 2014 and in
accordance with the Texas Rules of Civil Procedure 21 and 21a, a true and correct copy
of the foregoing was served by fax on:
Mr. Tom Benson
900 Jackson Street, Suite 750
Dallas, Texas 75202
Fax - 214-742-9879




321313
                                    Pu.INTln'S ManON l'Oll SUMMARY }UDCM!NT (Suun BoND)- PACE 3


                        Appellants Brief Page 025
                                                                               Filed: 3fl112014 3:57'.54 PM
                                                                                    Dana OeBeewoir
                                                                                 Travis Coun~ Clefk
                                                                                   C-1-CV-14.oo229'
                                                                                        Guy Oeles9io


nm STATE OF TEXAS                                  I               COUN1Y COUltT AT LAW
                                                   I
vs.                                                f                                 N0.7
                                                   f
                                                   f
                                                   I               TRAVIS COUNTY, TEXAS

                                            .DJDGMr.NT Niii
        On Pcbl_,- 14, 2014, C1U1C . . . _ C·l-cR.·13-501614 W8S calW for trill. Tiii Sllle
of Tam.,,..... "1 ill County Aaamey. 'Ille DeCcadanl. Brian Roy Whipple. failed to IPPCll'
... w . 'l1la9upoa, ... DetcadMll'• - - ,,. called dbtiDcdy Ill dw door of Ibo
~ IDCI ..,...,_ aiYeft a llllDGIWe time eo..,,_. However, the Defcndlnt fliJed to
......... wboll, ............

      Tbe Coult &m dllt die DdwiA-., 8ri1D Ito)' Wbipple. • pinGipll.10pdler wida Tom
I m (dbl NA F• a.ii Ba.di).• ..-y, on Nov.bcr 29, 2013, exadld a bond payable
to dle-ofTCIUI in tht .... MD of SS.000.00 conditiaald dlll the Defendllll, • priaeipil.
mouJd   -a..._,__. ........        Wen the County Coult Ill Law No. 7, Tmvil Coant)',
Tam. • tbl Tmll CGmll)' ~ in Amdn. Tcua. Ill its ...... -... now in -.iola,
...._,, 11111 tbae ...m       hm-,.
                               ro day llld tam to 111m of dlil Cowt mlil ~by
dae oourll of law, IO __.die S.. of Texas upon a chlll' b)' coq>lliat and infonmlion
.._. ftled   eccum. IUmlhc:rortbe.,.,.. mlldaamwr olfeme:
                        FALSE STATEMENT FOR PROPERTY/CREDIT.
         The Coult . . . . . doc'- ....... ~ bond is folftiled. The Coan
ORDERS dllt lbe S.. of Tew aeccwer hm Brim Ito)' Wldpple, priDcipll. and Tom Bcmoa.
IURll)', 1hc MD of SS,000.00 IDCI dllt 1IU judplmt .U lie IDldc ftall Ullea pd CIUIC lie
.,... ...., . . Ddendlnt did -       r·
        Sipedoa         ty/,~~ v( ~{ 0


McnilJ lir ... Sllle ofTeua:
Dlvill A. Ela•Bll. TNVil CGallly AllDnlly
P.O.la1741
MMi1a. TX 71767
..... (512)154-9513
                                                       11111111111111
                                                       000840518
Fax:   (512) 154 tlOI
BOND LD. msH            VOL. _ _ _ PAOE _ __




             E.~h\b\t.__..\9.-
                            ....--

                                   Appellants Brief Page 026
                                                                                                              \~
                      ...______ _
                           ........
i   I'   •II




                      --- ---                     &l'l'ltl&ti• • • • •
                                                                           •I j
                                                                           I   Fl
                                                                                  .

                          t
                          XXXXXXXXXXXXXX




                                           --      -
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                                           ...... "
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                                                                         .... -


                     "'   _________ ..... ,_ ___
                             --
                             "'                       -           •




                              -                       ,_--

               J=vhibit_ -·~- ·..

                                      Appellants Brief Page 027
                                                                                      \J
           ..                         •               C-1-CV-14-002294
                                                                                   •          Filed: 1/13/2015 5:33:22 PM
                                                                                                         Dana DeBeauvoir
                                                                                                       Travis County Clerk
                                                                                                         C-1-CV-14-002294
                                                       Ne. C 1 14 09229~                                       Andrea Scott
                                                 (CRIMINAL No. 1-CR-13-501684)

           THE STATE OF TEXAS                                      §            IN THE COUNTY COURT
                                                                   §
            vs.                                                    §
                                                                   §            AT LAW No. 7
            BRIAN ROY WHIPPLE and                                  §
            TOM BENSON                                             §
                                                                   §            TRAVIS COUNTY, TEXAS

                                                     DEFENDA."IT'S
                                            FIRST AMENDED ORIGINAL ANSWER

            Defendant, Tom Benson, files his First Ame.nded Original Answer.

                                                            A. General Denial

                1.     Defendant generally denies the allegations of plaintiff.

                                                          B. Affinnative Defense

            2.         Defendant is not liable to plaintiff for the amount of the bond pursuant to art.

            22.13(a)(5)(A) TEX. CODE CRIM. PROC., because the Defendant-Principal, Brian Roy Whipple,

            was incarcerated in the Clark County Detention Center. Las Vegas, Nevada, a jurisdiction within

                the United States, within 180 days from the date of bis failure to appear as required on February

                14, 2014.

                                                                C. Prayer

                3.     For these reasons, defendant asked the Court render judgment that plaintiff be awarded

                only, costs of court, any reasonable and necessary costs incurred by a county to secure the return

                of the principal, and interest accrued on the bond amount from the date of the judgment nisi to

                the date of the principal 's incarceration as provided in art. 22.13(5)(b) TEX. CODE CRIM. PROC.,

                and award all other relief to which defendant is entitled.


                Defendant's First Amended Original Answer - Page l of 2 Pages



Case # C-1-CV-14-002294

1111111111111111111111111111111111111111111111111111111
                                                    Appellants Brief Page 028
                   •
                                     Respectfully submitted,


                                     Isl   Tom Benson

                                     Tom Benson, Prose
                                     Defendant-Surety
                                     900 Jackson Street, Suite 750
                                     Dallas, Texas 75202
                                     Tex.as Bar l.D. 02170500
                                     (214) 742-9898
                                     (214) 742-9879 FAX
                                     tomrbenson@gmail.com



                                CERTIFICATE OF SERVICE

       I certify that I have on this 13th day of January, 2015, before S:OO P.M., caused a true
and correct copy of the foregoing Defendant's First Amended Original Answer to be delivered to
Tim Labadie, Assistant Travis County Attorney by email to: tim.labadie@traviscountytx.gov.



                                      Isl Tom Benson

                                      Tom Benson




Defendant's First Amended Original Answer-Page 2 of2 Pages




                              Appellants Brief Page 029
                                                                                  Filed: 1/13/2015 5:42:49 PM
                                                                                             Dana DeBeauvoir
                                       C-1-CV-14-002294                                    Travis County Clerk
                                                                                             C-1-CV-14-002294
                                      Ne. C 1 14 992194                                            Andrea Scott
                                (CRIMINAL No. 1-CR~13-501684)

THE STATE OF TEXAS                              §             IN THE COUNTY COURT
                                                §
vs.                                             §
                                                §             AT LAW No. 7
BRIAN ROY WHIPPLE and                           §
TOM BENSON                                      §
                                                §             TR.AVIS COUNTY, TEXAS

                          DEFENDANT'S RESPONSE TO
               PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND
                REQUESTS FOR COVRTTO TAKE JUDICIAL NOTICE

       Defendant asks the court to deny pla.intifrs motion for summary judgment and to take

Judicial Notice as requested herein.

                                          A. Introduction

1.     Plaintiff is The State of Texas; defendant is Tom Benson.

2.     Plaintiff sued defendant for forfeiture of a bail bond in a criminal case.
                                           \
3.     Defendant answered asserting a general denial and an affirmative defense under art.

22.13(a)(5){A) that the Defendant-Principal, Brian Roy Whipple was incarcerated in the Clark

County Detention Center, Las Vegas, Nevada, a jurisdiction within the United States, within

180 days from the date ofhis failure to appear as required on February 14, 2014.

                                             B. Facts

4.     Plaintiff filed a motion for summary judgment based on its cause of actfon for forfeiture

of a bail bond in a criminal case.

S.     Defendant attaches Exhibit 1 to establish facts not apparent from the record and

incorporates it by reference.


Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take
Judicial Notice- Page I ofS Pages



                                                             Case # C-1-CV-14-002294

                                 Appellants Brief Page   0301111111111111111111111111111111111111111111111111111111
                                                                                                                      \\(:>
                                    C. Argument & Authorities

6.       In deciding whether there is a disputed issue of material fact that precludes summary

judgment, the court takes as true all evidence favorable to the nonmovant. Limestone Prods. Distrib.,

Inc. v. McNamara, 11 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S. W.2d 217,

223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The court

must view the evidence in the light most favorable to the nonmovant and must indulge every

reasonable inference and resolve ati doubts in favor ofthe nonmovant. Limestone Prods., 71 S. W.3d

at 311; Nixon, 690 S.W.2d at 549.

7.       The court should denyplaintiff s motion for summary judgment because defendant's answer

asserts the affirmative defense of the incarceration of the Defendant-Principal on the bond, Brian

Roy Whipple in the Clark County Detention Center, Las Vegas, Nevada, a jurisdiction within the

United States, within 180 days from the date of his failure to appear as required on February 14,

2014. This defense is provided by art. 22.13(5)(A)(I) TE.x. CODE CRIM. PROC.

8.       The summary-judgment evidence attached to this response by defendant has created a fact

issue on each element of his affirmative defense. Bassett v. Am. Nat'l Bank, 145 S.W.3d 692, 696

(Tex. App.-Fort Worth 2004, no pet.}; see Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.
1984).

9.       Defendant's affirmative defense consists of the following elements: (1) Incarceration of

principal on bond; (2) within any jurisdiction in the United States; (3) principal charged with

misdemeanor; (4) Incarceration within 180 days from the date the principal fail to appear in court.

1O.      The .smnmary-judgment evidence raises a fact issue on each element of the affirmative

defense.


Defendant's Response to Plaintiffs Motion for Summary Judgment and Requests to take
Judicial Notice - Page 2 of S Pages




                                Appellants Brief Page 031
                                                                                                        \<\
                                    D. Summary-Judgment Evidence

11.    Defendant includes the summary·judgment evidence attached to this response and

incorporates the evidence into this response by reference.

12.    This response depends on the following documentary evidence:

       Documentary evidence.             "Exhibit l ", which is verified as authentic, establish the

following facts:

       ( 1)    that Brian Whipple DOB: XXXXX was incarcerated in the Clark County Detention

Center, Las Vegas, Nevada; and

       (2)     on June 29, 2014.

13.    This response additionally depends on the following evidence provided by judicial notice:

       ,fudlclal Notice.          Defendant requests the Court to take judicial notice :

       (1)     that Clark County is located in the State of Nevada;

        (2)    that the Cjty of Las Vegas, Nevada is located in Clark County~

        (3)    that both the City of Las Vegas, Nevada and Clark County, Nevada are jurisdictions

located within the United States;

        (4)    that the defendant-principal Brian Roy Whipple failed to appear when required in

court on February 14, 2014;

        (5)        that the number of days between February 14, 2014 and June 29 1 2014 is less that

180 days;

        (6)        of the Defendant's First Amended Original Answer filed in this case; and

        (7)        that the principal Brian Roy Whipple's date of birth specified on the bond that is the

subject matter of this suit isXXXXXX .


Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take
Judicial Notice - Page 3 of 5 Pages




                                   Appellants Brief Page 032
                                                                                                            ,ro
                                              E. Conclusion

14.    Because the Defendant·Principal, Brian Roy Whipple was incarcerated in the Clark County

Detention Center, Las Vegas, Nevada, a jurisdiction within the United States, on June 29, 2014,

which within 180 days from the date of his failure to appear on February 14, 20l4, the State is not

entitled to recover $5 ,000.00. It is only entitled to recover costs of court and interest accrued on the

bond amount ofSS,000.00 from February 14, 2014 (the date the principal failed to appear) to June

29, 2014 (the date of the principal 's incarceration). Had the State provided any summary judgment

proof of any reasonable and necessary costs incurred by a county to secure the return of the principal

it would have been entitled to these costs also but there is no evidence before the Court of these

costs and therefore the State is not entitled to them.

                                                 F. Prayer
1S.     For these reasons, defendant asks the court to denyplaintiff"s motion for summary judgment

or aJternariveJy, enter a judgment only for costs of coun and jnterest accrued on the bond amount

ofSS,000.00 from February 14, 2014 (the date the principal failed to appear) to June 29, 2014 (the

date of the principal 's incarceration).


                                           Respectfully submitted,

                                           Isl Tom Benson

                                           Tom Benson, Prose
                                           Defendant-Surety
                                           900 Jackson Street, Suite 750
                                           Dallas, Texas 75202
                                           Texas Bar l.D. 02170500
                                           (214) 742-9898
                                           (214) 742-9879 FAX
                                           tomrbenson@gmail.com


Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take
Judicial Notice - Page 4 of 5 Pages




                                 Appellants Brief Page 033
                                CERTIFICATE OF SERVICE

       I certify that I have on this 13th day of January, 2015, before 5:00 P.M., caused a true and
correct copy of the foregoing Defendant's Response to State's Motion for Summary Judgment with
attachments to be delivered to Tim Labadie, Assistant Travis County Attorney by email to:
tim.labadie@traviscountytx.gov.

                                     Isl Tom Benson

                                     Tom Benson




Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take
Judicial Notice - Page 5 of S Pages




                              Appellants Brief Page 034
                   ~IBIT "I" (Three Pages)




                                               No. C·l-14~002294
                                 (CRIMINAL No. 1-CR-13-501684)

THE STATE OF TEXAS                                         §                JN THE COUNTY COURT
                                                           §
vs.                                                        §
                                                           §                ATLAWNo. 7
BRIAN ROY WHIPPLE and                                      §
TOM BENSON                                                 §
                                                           §                TRAVlS COUNTY, TEXAS

                                BUSINIJSS RECQRD AFFIDAVJT

      Before me, the tDldersigned authority, personally appeared Tom Ben.~on, who
being by me duly sworn, deposed as follows:
"My name is Tom Benson, 1 am of sound mind, capable of making this affidavit, and
personally acquainted with the facts herein stated:
I am the cust.00.ian of the records of Tom Benson dlb/a Act Fast Bail Bonds of Fort
Worth, Texas. Attached hereto is one page of records from Tom Benson d/b/a Act Fast
Bail Bonds of Fort Worth, Tex.as. The said one page of records are kept by Tom Benson
d/b/a Act Fast Bail Bonds of Fort Worth, Texas in the regular course of business, and it
was the regular practice of said entity for an employee or representative with knowledge
of the act, event, condition, opinion, or diagnosis, recorded to make the record or to
transmit infonnation thereof to be included in such record; and the record was made at or
near the time or reasonably soon thereafter. The record attached hereto is the original or
an exact duplicate of the original."



                                              ..:.._._. . . ..,.om Benson
SWORN TO AND SUBSCRIBED before me on the 6th day of January, 2015.

      ..         lfllCIA•-
            N'7tOty ftUbllc. Stote of Tete•                    ~7V
              Mv~o~ntJ                                  NOTARY PUB.Lie

Business Record Affidavit • Page 1 of 1 Pages




                                   Appellants Brief Page 035
                                                                                                   rv\
'   .

                                      CERTIFICATE OF SERVICE

               I certify that I have on this 6th day of January. 2015, before 5:00 P.M., caused a
        true and correct copy of the foregoing Business Record Affidavit with one attached page
        to be delivered by fax to: (512) S84 1888 for Tim Labadie, Assistant Travis County
                                          854-4808
        Attorney.




        Business Record Affidavit • Page 2 of 2 Pages



                                      Appellants Brief Page 036
                                                                                                    tl 1.;
                                                                                                     v
XXX
