                                    NUMBERS
                                  13-14-00645-CR
                                  13-14-00647-CR

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

WILLAMSBURG NATIONAL INSURANCE                                              Appellant,
CO. d/b/a EL PADRINO BAIL BONDS,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


               On appeal from the County Court at Law No. 3
                       of Cameron County, Texas.


                         MEMORANDUM OPINION
              Before Justices Garza, Benavides and Longoria
                  Memorandum Opinion by Justice Garza

      In each of these cases, appellant, Williamsburg National Insurance Company d/b/a

El Padrino Bail Bonds (“appellant” or “the surety”), appeals from a judgment forfeiting a
bail bond.1 Appellant raises the same issues in both cases: (1) the trial court erred in

consolidating similar forfeiture cases2; (2) the trial court erred in abating two cases and

allowing the State to file motions in the abated cases; (3) the trial court abused its

discretion by failing to obtain proof of citation in compliance with article 22.05 of the code

of criminal procedure, see TEX. CODE CRIM. PROC. ANN. art. 22.05 (West, Westlaw through

2015 R.S.); and (4) the trial court erred in granting judgment without evidence that the

defendant principal was properly served. In appellate cause number 13-14-645-CR, we

reverse and remand.3 In appellate cause number 13-14-647-CR, we affirm the trial

court’s judgment.4

                                           I. BACKGROUND

        Appellant is a bail bondsman who issued bail bonds for the principals in these two

cases. In each case, the principal failed to appear. The State initially filed a combined

motion for default judgment against the principal and motion for summary judgment

against appellant in each case. Appellant made various objections to the State’s motion

which were discussed at a joint hearing on August 5, 2014. The State subsequently




        1 Although the parties are the same in each case, the principals and bond amounts differ. Because
appellant has raised identical issues in each case, we address them in one opinion.
      2 A third case, trial court cause number 2013-CCL-732, and a fourth case, trial court cause number

2013-CCL-864, are not involved in this appeal.

        3Appellate cause number 13-14-645-CR is trial court cause number 2013-CCL-1381-C, styled The
State of Texas v. Jose Juan Bernal-Mares; El Padrino Bail Bonds; Williamsburg National Insurance
Company in County Court at Law No. 3 in Cameron County, Texas.

        4Appellate cause number 13-14-647-CR is trial court cause number 2012-CCL-01400-C, styled
The State of Texas v. El Padrino Bail Bonds; Gabriel Morales, Jr.; Williamsburg National Insurance
Company in County Court at Law No. 3 in Cameron County, Texas. On October 16, 2015, appellant filed
a motion to remand appellate cause number 13-14-647-CR. On November 4, 2015, the State filed a
response to appellant’s motion. After reviewing the parties’ arguments, we find appellant’s motion to
remand to be without merit and we deny it.


                                                   2
abandoned its motion and filed (or intended to file) a motion for traditional and no-

evidence summary judgment in each case. The trial court held a second joint hearing on

September 23, 2014. At the second hearing, the State argued that it was entitled to

summary judgment against the principal and the surety (appellant) in each case. On

October 2, 2014, the trial court granted the State’s motion in each case.5

    A. Cause Number 13-14-645-CR

        In appellate cause number 13-14-545-CR, appellant was the surety on a $1,000

bond for principal Juan Bernal-Mares. In its brief, the State concedes that, due to an

“unintentional omission,” its motion for traditional and no-evidence summary judgment

was not filed in this case. The State recognizes that this omission may be “reversible

error” and requests that we consider reversal of the judgment and remand for a new trial.

We agree with the State. Granting a summary judgment on a claim not addressed in a

summary judgment motion is, as a general rule, reversible error. G & H Towing Co. v.

Magee, 347 S.W.3d 293, 297 (Tex. 2011). Accordingly, we reverse the judgment in

appellate cause number 13-14-645-CR and remand that cause to the trial court for further

proceedings.

    B. Cause Number 13-14-647-CR

        In appellate cause number 13-14-647-CR, appellant was the surety on a $5,000

bail bond for principal Gabriel Morales. The State filed a traditional and no-evidence

motion for summary judgment on August 25, 2014. In the traditional section of its motion,

the State argued that it had met its burden of proving forfeiture by showing that (1) a bond


       5 In appellate cause number 13-14-645-CR, the trial court rendered judgment against the principal,

Juan Bernal-Mares, and appellant in the amount of $1,000 plus costs. In appellate cause number 13-14-
647-CR, the trial court rendered judgment against the principal, Gabriel Morales, and appellant in the
amount of $5,000 plus costs.

                                                   3
was executed between the principal and appellant, (2) the principal failed to appear, and

(3) a judgment nisi was issued. As summary judgment evidence, the State attached a

certified copy of the bond and a certified copy of the judgment nisi. The trial court granted

summary judgment and this appeal followed.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       Bond forfeiture proceedings are criminal cases reviewed under civil appellate

rules. TEX. CODE CRIM. PROC. ANN. art. 44.44 (West, Westlaw through 2015 R.S.);

McCarter v. State, 442 S.W.3d 655, 658 (Tex. App.—El Paso 2014, no pet.); see

Castaneda v. State, Nos. 13-06-00039-CV, 13-06-00127-CV, 13-06-00128-CV, 2008 WL

2744582, at *2 (Tex. App.—Corpus Christi June 30, 2008, no pet.) (mem. op.). “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 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.)
       ([e]mphasis in orig.).

McCarter, 442 S.W.3d at 658.

                                       III. DISCUSSION

       By its first issue, appellant argues that the trial court erred in consolidating the

three cases before it. Appellant argues that the trial court was “hearing one set of facts

                                              4
and then applying those facts to other folks.” The State responds that the cases were

never consolidated. We agree. Appellant appears to concede this fact by stating,

“[s]eemingly, it is a consolidation, however, in reality, it is not.” Moreover, appellant’s

arguments at both hearings were legal arguments.6 The record does not reflect that the

trial court heard one set of facts and applied it to others. We overrule appellant’s first

issue.

         By its second issue, appellant complains that the trial court erred in abating the

cases, but then permitted the State to file its motion for summary judgment in the abated

cases. The State responds that there was no abatement of the present case because

the record reflects that the trial court stated that “all of these cases will be carried

together.” Again, we agree with the State.

         At the end of the August 5, 2014 hearing, the parties argued over whether a jury

trial was available to appellant and what constituted proper service to the principal. The

trial court requested additional briefing on those issues and instructed both parties to file

additional briefing in only one of the cause numbers. The following exchange occurred:

         [The State]: And do we just want to pick one cause number to have these
                      matters?

         [The Court]: I think so. If you want to—I mean, I’m thinking just emails, you
                      know, back and forth where we CC everybody so that
                      everybody gets it, but if you want to put somewhere in there
                      that this, you know, will also effect the decisions of cause
                      number, cause number, cause number, cause number.

         [State]:     Okay.

         [Court]:     But this is in direct response to this case. We’ll go ahead and
                      abate all other cases where this is going to be the same


         6
         At the end of the September 23, 2014 hearing, appellant noted that there were changed
circumstances in two of the cases because the principals were brought into custody.

                                              5
                     argument until we settle this, and then we’ll be able to proceed
                     with the rest of them.

       [Appellant]: Got it.

       [Court]:      So the rest of the cases will be abated until we make a decision
                     on this.

       [Appellant]: I understand.

       [Court]:      Is that—do you have any problem with that?

       [State]:      Well, I think I can fix the matter with the summary judgment
                     issue. If this really is their objection to the existence of a default
                     and a summary, I can just amend all the summary judgments
                     to be a single summary judgment motion as to both parties and
                     that brings us back here arguing the issues again.

                     ....

       [Court]:      Here it is. Okay. Then you don’t have to file your briefs in each
                     case. Just file it on the first one, but understand that all of these
                     cases will be carried together.

       We agree with the State that although the trial court stated that the cases would

be “abated,” the court clearly intended only that the cases be “carried together” until the

legal issues applicable to all the cases were resolved. Significantly, after the State

announced its intention to file amended motions for summary judgment in each case,

appellant did not object on the ground that the cases were abated. Similarly, at the

beginning of the September 23, 2014 hearing, appellant reminded the trial court that it

had “reset all four cases.” Appellant also advised the trial court that “what’s also pending

is their [the State’s] new motions for summary judgment.” Appellant raised no objection

to the State’s filing motions for summary judgment in the cases. As a general rule, the

record must show that a complaint made on appeal was timely made to the trial court

“with sufficient specificity to make the trial court aware of the complaint, unless the specific



                                                6
grounds were apparent from the context[.]” TEX. R. APP. P. 33.1; Weeks v. State, 396

S.W.3d 737, 741 (Tex. App.—Beaumont 2013, pet. ref’d). Because appellant did not

object to the State filing its motions for summary judgment, it has failed to preserve this

issue for our review. See TEX. R. APP. P. 33.1. We overrule appellant’s second issue.

        By its third issue, appellant complains that: (1) there was insufficient evidence to

show that the principal was served in compliance with article 22.05 of the code of criminal

procedure, see TEX. CODE CRIM. PROC. ANN. art. 22.05, and (2) the trial court permitted

“the use of hearsay evidence” at the summary judgment hearing to show that the principal

was served.

        We first address appellant’s argument that “hearsay evidence” was used to show

that the principal was properly served.7 At the September 23, 2014 hearing, appellant’s

counsel made the following argument:

        But nonetheless, another issue is what we now have is the state coming in
        and saying, I’m providing testimony that we served this person and that we
        found his last known address and that somebody in my office sent him a
        letter or went by his house, none of that’s attached anywhere as evidence
        in their motion for summary judgment.

        ....

        We’re just—we don’t even have testimony or evidence that these people
        were served. It’s just the prosecutor saying, We did.

At no time did appellant’s counsel raise a hearsay objection. To preserve error for

appellate review, the complaining party must timely and specifically object to the evidence

and obtain a ruling. TEX. R. APP. P. 33.1(a); Bay Area Healthcare Grp., Ltd. v. McShane,




        7 At the August 5, 2014 hearing, appellant’s counsel objected to a copy of a computer clerk’s entry
stating that the principal had been served as “hearsay,” but no ruling was obtained from the trial court.

                                                    7
239 S.W.3d 231, 235 (Tex. 2007). Appellant therefore failed to preserve this issue for

review. See TEX. R. APP. P. 33.1.

        Appellant also argues that the trial court abused its discretion by failing to obtain

proof of citation in compliance with article 22.05. Article 22.05 provides, in pertinent part,

        It shall not be necessary to give notice to the defendant [principal] unless
        he has furnished his address on the bond, in which event notice to the
        defendant shall be deposited in the United States mail directed to the
        defendant at the address shown on the bond or the last known address of
        the defendant.

TEX. CODE CRIM. PROC. ANN. art. 22.05. Here, the clerk’s record contains a copy of the

citation mailed to Morales, the principal, at the address provided on the bond. The clerk’s

record further contains a copy of the returned envelope addressed to Morales marked

“Return to Sender Attempted–Not Known Unable to Forward.” The trial court was entitled

to take judicial notice of its file in order to show that the documents in the file are a part of

the court’s files.8 See In re C.S., 208 S.W.3d 77, 81 (Tex. App.—Fort Worth 2006, pet.

denied) (“It is appropriate for a court to take judicial notice of a file in order to show that

the documents in the file are a part of the court's files, that they were filed with the court

on a certain date, and that they were before the court at the time of the hearing”). We

conclude there was sufficient evidence to show proof of citation in compliance with article

22.05. See TEX. CODE CRIM. PROC. ANN. art. 22.05.

        By his fourth issue, appellant appears to restate its argument in its third issue: that

the evidence is insufficient to show that the principal was properly served. We have




        8
        The State requested that the trial court take judicial notice of the documents in its file, and we
assume that it did so.


                                                    8
already rejected appellant’s argument.             For the reasons stated above, we overrule

appellant’s fourth issue.9

                                            IV. CONCLUSION

        In appellate cause number 13-14-647-CR, we affirm the trial court’s judgment. In

appellate cause number 13-14-645-CR, we reverse the trial court’s judgment and remand

the cause for further proceedings.



                                                          Dori C. Garza
                                                          Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of November, 2015.




        9 In one section addressing this issue, appellant asserts that “this is a default summary judgment.”

We disagree. The State initially submitted a combined motion for default judgment and motion for summary
judgment (discussed at the August 5, 2014 hearing). The State abandoned that motion and submitted its
motion for traditional and no-evidence summary judgment (addressed at the September 23, 2014 hearing).

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