Neiman Jermaine Boone v. The State of Texas--Appeal from 188th District Court of Gregg County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2004 » Neiman Jermaine Boone v. The State of Texas--Appeal from 188th District Court of Gregg County

State: Texas

Court: Texas Northern District Court

Docket No: 12-04-00044-CR

Case Date: 11/24/2004

Plaintiff: Neiman Jermaine Boone

Defendant: The State of Texas--Appeal from 188th District Court of Gregg County

Preview:Ron Hill, et al. v. The State of Texas--Appeal from 54th
District Court of McLennan County
MAJORITY | MAJORITY
[Changed from civil case
to criminal case by order
6-6-96]
IN THE
TENTH COURT OF APPEALS
No. 10-95-302-CR
RON HILL, ET AL.,
Appellants
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 94-3887-2
O P I N I O N
The question presented in this bond forfeiture proceeding is whether incarceration in Mexico excuses a criminal
defendant from appearing when his case is called for trial. Our answer is that he may be excused by statute, but he and
his sureties bear the burden of proving that such incarceration was an uncontrollable circumstance that resulted without
his fault. Because the question arose in the summary judgment context and the surety raised fact issues on the
file:///C|/Users/Peter/Desktop/opinions/PDFs1/7005.html[8/20/2013 7:22:18 PM]

affirmative defense, we will reverse the judgment that declared the forfeiture final.
THE FORFEITURE
Raunel Granados Vences was charged with a felony in McLennan County. On August 4, 1994, Ron Hill signed
Vences' $50,000 bond as his surety. When Vences failed to appear for trial on October 14 of that year, the court
rendered judgment nisi and the bond forfeiture proceeding began. After being cited, Hill filed an answer setting up the
affirmative defense of exoneration under article 22.13 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann.
art. 22.13 (Vernon 1989). The State then filed a motion for a summary judgment asking the court to take judicial notice
of the proceeding in the criminal case. The motion was not supported by any other summary-judgment proof. Hill
responded to the motion and attached two affidavits stating that Vences had been in jail in Piedras Negras, Mexico
since October 4, 1994. The State objected to both affidavits on the ground that they contain hearsay, but never obtained
a ruling on either.
When the State's motion for summary judgment was heard on August 4, 1995, the parties agreed to stipulate that
Vences had been in custody in Mexico continuously since before the appearance date. The court accepted the
stipulation, granted the State's motion for summary judgment and, after hearing evidence, granted a $10,000 remittitur.
Thus, "Judgment on State's Motion for Summary Judgment" was entered in favor of the State for $40,000, plus costs. //
Hill argues that the court incorrectly determined the law and entered an improper judgment because the summary
judgment evidence shows that Vences was excused from appearing in McLennan County. The State urges us to affirm
the judgment because Vences "voluntarily left the jurisdiction of the state." No dispute exists about the validity of the
bond or about its terms.
GOVERNING RULES
The State's proof in a bond forfeiture proceeding consists of the bond and the judicial declaration of the forfeiture of
the bond, which is the judgment nisi. Alvarez v. State, 861 S.W.2d 878, 887 (Tex. Crim. App. 1993) (on rehearing)
(citing Tocher v. State, 517 S.W.2d 299, 301 (Tex. Crim. App. 1975)). "The judgment nisi is prima facie proof that the
statutory requirements of Art. 22.02 have been satisfied. The burden then shifts to the defendant to affirmatively show
otherwise." Id. (citations omitted).
Chapter 22 of the Code of Criminal Procedure controls the procedure for bond forfeitures. Tex. Code Crim. Proc. Ann.
arts. 22.01-22.17 (Vernon 1989). Article 22.13, entitled "Causes which will exonerate," provides in part:
The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the
forfeiture 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. //
Id. art. 22.13.3.
We have found no provision in the code, nor have we been directed to any by the parties, that governs the status of a
defendant who is incarcerated in a foreign jurisdiction. // Thus, the question is initially whether Vences' incarceration
in Mexico is, as a matter of law, an "uncontrollable circumstance" that prevented him from appearing and whether it
arose "from no fault on his part."
file:///C|/Users/Peter/Desktop/opinions/PDFs1/7005.html[8/20/2013 7:22:18 PM]

The State points to the early case of Woods v. State, 51 Tex. Crim. 595, 103 S.W. 895 (1907), in support of its
position. There, the defendant failed to appear for trial in Bosque County. The cause of his failure to appear was "set
up and established in proof . . . that at the time he was held in custody on a similar charge in Hamilton County." Citing
a predecessor statute with wording similar to the present article 22.13, the Court, after recognizing that sickness was
then a specific excuse, said:
Other causes mentioned are such as must not arise from fault on appellant's part. It may be that appellant was properly
indicted in the other county of Hamilton, and in one sense this may have been a fault on his part. Still in our view it
would constitute, no matter whether he was rightly or wrongfully indicted in the other county, a sufficient cause for his
exoneration, inasmuch as the very government which held him amenable to the charge in Bosque county, had taken
jurisdiction of him in Hamilton county. However, this in itself would not be a complete exoneration; but the statute
further provides that he must subsequently appear and respond to the accusation against him. This we understand the
record shows he did. . . . Under these circumstances we believe he should have been completely exonerated, and no
forfeiture taken on his bond.
Id. at 895-96. The court also observed that the bond was, for other reasons, void and that no recovery could be had
upon it. Id. at 896.
Jones v. State, 112 Tex. Crim. 171, 15 S.W.2d 622 (1929), involved a bond forfeiture after the defendant failed to
appear in Hartley County. Jones alleged that he should be exonerated because of uncontrollable circumstances in that
he was at the time confined to the federal penitentiary, having been convicted in the United States District Court. The
Court of Criminal Appeals reversed the judgment on the appearance bond, saying:
It was undisputed that the sheriff of Hartley county placed F.J. Jones in the custody of the federal authorities, and that
said Jones had been sent to the federal penitentiary prior to the date the judgment nisi was entered, and had been
confined in said penitentiary at all times since said date, and that he was confined therein on the date final judgment
was entered herein. Hence it would appear that uncontrollable circumstances, brought about by the action of the sheriff
of Hartley county in placing F.J. Jones in the custody of federal authorities, prevented his appearance at court on the
day his appearance bond was forfeited; and furnished sufficient cause for his nonappearance before final judgment was
entered.
Id. at 623.
After C. R. Williams was convicted of forgery and knowingly passing a forged instrument in Webb county, he made
bond pending an appeal. Williams v. State, 130 Tex. Crim. 124, 92 S.W.2d 1036, 1037 (1936). On appeal from a
judgment on the bond, the Court, holding that the State had not proven how the cause was disposed of on appeal and
that a material variance existed between the bond and the judgment nisi, reversed the judgment. Id. at 1038. However,
the Court addressed another point:
The appellants in their answer sought to be relieved from their obligation on said recognizance by reason of the fact
that C. R. Williams, the principal in said recognizance, was at the time of the forfeiture confined in the penitentiary of
the state of Iowa . . . [and] that it was beyond their power to produce him and not within his power to appear, and,
therefore, they should be exonerated from liability. We cannot agree with them for the reason that it is obvious that if
he was confined in the state penitentiary of the state of Iowa, it was his fault and his conduct that put him there, and he
and his sureties could not be exonerated from liability by reason of his own act and conduct, which may have made it
impossible for him to appear.
Id.
In Sanders v. State, 166 Tex. Crim. 255, 312 S.W.2d 660 (1958), the non-appearing defendant and his sureties asserted
exoneration from appearing in Lubbock County because the defendant was confined in the state penitentiary after
having had his probation revoked in another county. The Court summarily reversed two of three judgments of
forfeiture, saying:
The rule seems to be well settled, both in this and other jurisdictions, that, where the principal is confined in jail or the
file:///C|/Users/Peter/Desktop/opinions/PDFs1/7005.html[8/20/2013 7:22:18 PM]

penitentiary by virtue of a commitment from the same court or another court in the State at the time his bond is
forfeited, such confinement exonerates both the principal and his sureties for the reason as stated by Judge Henderson
in Woods v. State, 51 Tex.Cr.R. 595, 103 S.W. 895, 896, "as the very government which held him amenable to the
charge in Bosque county had taken jurisdiction of him in Hamilton county."
Id. at 661.
Grantham v. State, 408 S.W.2d 235, 236 (Tex. Crim. App. 1966), addressed the question: "whether or not the
incarceration of the principal in the penitentiary of another state upon a felony conviction is an `uncontrollable
circumstance which prevented his appearance' to answer when [a] misdemeanor case was called for trial, and, if so,
does proof of such incarceration in another state, standing alone, show `that his failure to appear arose from no fault on
his part?'" The Court declined to follow Williams because "the charge against the principal Grantham in this state is a
misdemeanor which may be prosecuted after the felony sentence in Nebraska has been served." Id. The court observed
that reversal of the judgment did not release the sureties from liability on the appearance bond or prejudice the right of
the state to forfeit the bond should Williams fail to appear after being released from the Nebraska penitentiary. Id.
Grantham was followed soon thereafter when the Court reversed a summary judgment against a defendant who failed
to appear in Potter County, but had been delivered to the State of Mississippi on the same date that he signed a bond in
Texas and was incarcerated in the Mississippi penitentiary. James v. State, 413 S.W.2d 111, 111 (Tex. Crim. App.
1967). Also citing Jones, the Court noted that the State argued that "incarceration in Mississippi was not a
circumstance which arose through no fault of the principal." Id. at 112; Jones, 15 S.W.2d at 623. The Court held only
that the affidavits establishing the fact of incarceration raised fact issues that precluded a summary judgment. James,
413 S.W.2d at 112.
Two cases decided on the same day summarily hold that a principal who is confined in the state by virtue of an order
of a court of this state is exonerated for failing to appear for trial. Smith v. State, 561 S.W.2d 501, 501 (Tex. Crim.
App. [Panel Op.] 1978) (No. 57165); Smith v. State, 561 S.W.2d 501, 502 (Tex. Crim. App. [Panel Op.] 1978) (No.
57167).
From the opinions above, we glean the following propositions:
" A defendant who is incarcerated in Texas on the date he is to appear for trial in this state is excused from appearing;
" Proof that a defendant was turned over to another state by a Texas official will exonerate the defendant from
appearing for trial in Texas;
" Incarceration in another state will excuse a defendant who is charged with a misdemeanor from appearing for trial;
" Incarceration in another state, without a further showing, does not exonerate a defendant because he has failed to
prove that his incarceration was not the result of his own fault and conduct;
" An affidavit establishing that a defendant was incarcerated in another state raises a fact issue sufficient to preclude a
summary judgment forfeiting the bond after the defendant failed to appear for trial in Texas.
Without attempting to reconcile the obvious conflicts in these decisions, we apply the cases to the present facts by
holding that, when the defendant is confined outside of the state of Texas whether in another state or in a foreign
jurisdiction on the date his case is called for trial, he and his sureties bear the burden of pleading and proving the facts
required by the statute to exonerate him. They must prove that the defendant's failure to appear: (1) was the result of
some uncontrollable circumstance which prevented his appearance at court; and (2) arose from no fault on his part.
Tex. Code Crim. Proc. Ann. art. 22.13.3.
Having made this determination, we turn to the second question we must address. In the context in which the
interpretation question arose, who has the burden of producing summary-judgment proof of the facts necessary to
defeat, establish, or raise the affirmative defense?
file:///C|/Users/Peter/Desktop/opinions/PDFs1/7005.html[8/20/2013 7:22:18 PM]

STANDARD OF REVIEW
Article 22.10 of the Code of Criminal Procedure provides that bond forfeiture proceedings, although criminal in nature,
are "governed by the same rules governing other civil suits." Id. art. 22.10; Alvarez, 861 S.W.2d at 881.
The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d
546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is
entitled to the summary judgment as a matter of law. Id. The reviewing court must accept all evidence favorable to the
non-movant as true. Id. at 549. Every reasonable inference must be indulged in favor of the non-movant and all doubts
resolved in its favor. Id.
In reviewing the summary judgment, we must determine whether the State as movant met its burden by establishing
that no genuine issue of material fact exists. Id. at 548; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979). The State bears the burden of proving its entitlement to the summary judgment as a matter of law.
See Nixon, 690 S.W.2d at 548; Roskey v. Texas Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex. 1982) (per
curiam); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We must
accept as true all evidence favorable to Hill, the non-movant, indulging every reasonable inference and resolving all
doubts in his favor. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). We will consider evidence which favors
the State as the movant only if it is uncontroverted. See Great Am. Reserve, 391 S.W.2d at 47.
A plaintiff who conclusively establishes the absence of disputed fact issues will not be prevented from obtaining a
summary judgment because the defendant merely pled an affirmative defense. Nicholson v. Memorial Hosp. Sys., 722
S.W.2d 746, 749 (Tex. App. Houston [14th Dist.] 1986, writ ref'd n.r.e.). An affirmative defense will prevent the
granting of a summary judgment only if each element of the affirmative defense is raised by competent summary-
judgment evidence. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
In moving for a summary judgment in an appearance-bond forfeiture case, the State must establish as a matter of law
that there are no genuine issues of material fact as to any of the elements of the State's cause of action, which are
proved by the bond and the judgment nisi. Alvarez, 861 S.W.2d at 887 (citing Deckard v. State, 615 S.W.2d 717, 718
(Tex. Crim. App. [Panel Op.] 1981)). To controvert the State's prima facie proof, the defendant or his sureties must,
[p]ursuant to the express terms of Article 22.13, . . . show (1) that some uncontrollable circumstance prevented the
principal's appearance at court, (2) that the principal's failure to appear arose from no fault on his part, and (3) that the
principal appeared before final judgment on the bond to answer the accusation against him (or had sufficient cause for
not so appearing). //
Id. at 889 n.5 (emphasis in original).
APPLICATION OF STANDARD
With these principles in mind, we look to the summary-judgment proof. // The proof conclusively shows that his being
confined in Mexico prevented Vences from appearing in McLennan county when his case was called for trial. As
movant, the State was entitled to a summary judgment upon showing that Vences failed to appear and that the bond
was valid. See Nicholson, 722 S.W.2d at 749. Hill's burden was to establish fact issues on each element of his
affirmative defense under the statute. Brownlee, 665 S.W.2d at 112; Fisher v. State, 832 S.W.2d 641, 643 (Tex. App.
Corpus Christi 1992, no pet.). The record is silent about how Vences came to be in Mexico, the nature of the charge
against him there, his culpability on the charge, and other facts that might have conclusively proven that his
confinement arose from events that were not within his control and not his fault. However, indulging every reasonable
inference in Hill's favor and resolving all doubts in his favor, as we must, we find that the affidavits establishing the
fact of incarceration are sufficient to raise fact issues under the statute. Nixon, 690 S.W.2d at 548; James, 413 S.W.2d
at 112.
Finding that Hill has raised fact issues about the statutory defense of exoneration that would excuse Vences from
file:///C|/Users/Peter/Desktop/opinions/PDFs1/7005.html[8/20/2013 7:22:18 PM]

appearing for trial, we cannot affirm the summary judgment making final the forfeiture of his bond. We sustain Hill's
points of error.
CONCLUSION
We reverse the judgment and remand the cause for trial on the issues presented by Hill's pleading of the affirmative
defense of exoneration under Article 22.13.
BILL VANCE
Justice
Before Justice Cummings,
Justice Vance, and
Chief Justice Frank G. McDonald (Retired)
(Justice Cummings dissenting)
Reversed and remanded
Opinion delivered and filed April 17, 1996
Publish
Note: Changed from CV to CR by ord dated 6-6-96
file:///C|/Users/Peter/Desktop/opinions/PDFs1/7005.html[8/20/2013 7:22:18 PM]

Download 7005.pdf