In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00091-CV
______________________________
ROMERO MAYA, DEFENDANT PRINCIPAL, AND
COWBOY BAIL BONDS, Appellant
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V.
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THE STATE OF TEXAS, Appellee
                                             Â
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court No. F01-48878-PKW
                                                Â
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter
O P I N I O N
            The trial court awarded a $2,500.00 bond forfeiture judgment in favor of the State and against Cowboy Bail Bonds. On appeal, Cowboy Bail Bonds contends the trial court should have ruled against the State and in favor of Cowboy Bail Bonds' asserted affirmative defense. We affirm the trial court's judgment.
Factual and Procedural Background
            Police arrested and charged Romero Maya with delivery of a controlled substance, a felony offense. See Tex. Health & Safety Code Ann. §§ 481.112 (penalty group 1),  481.1121 (penalty group 1-A), 481.113 (penalty group 2), 481.114 (penalty groups 3 and 4) (Vernon 2003). Maya's bond was set at $2,500.00. Maya hired Cowboy Bail Bonds to post bond on his behalf, which Cowboy did January 30, 2001, and Maya was free pending trial. Maya regularly appeared at court over the next year, until he failed to appear for an October 3, 2002, hearing. The trial court issued a warrant for Maya's arrest and ordered the bond posted by Cowboy forfeited to the State. A judgment nisi was signed the same day, and service was executed October 18, 2003. At trial on the judgment nisi, Cowboy said it should not be held liable for the bond because, before the issuance of the forfeiture in the criminal case, Cowboy filed an "affidavit to go off bond," which Cowboy contends the trial court failed to act on before Maya's failure to appear in the criminal case, and the trial court's failure to approve the affidavit to go off bond prevented Cowboy from securing an arrest warrant which Cowboy could have used to lawfully apprehend Maya before he failed to appear October 3. Cowboy asks us to reverse the trial court's judgment of forfeiture and hold the mere filing of an "affidavit to go off bond" presents an affirmative defense to the forfeiture suit in this case.
Analysis
            To resolve this issue, we are called on to analyze the meaning of Article 17.19 of the Texas Code of Criminal Procedure, which governs this issue. When interpreting a statute, "our primary goal is to ascertain and give effect to the Legislature's intent in enacting it." In re Canales, 52 S.W.3d 698, 702 (Tex. 2001). "If a statute is clear and unambiguous, we need not resort to rules of [statutory] construction or other aids to construe it." Id. "Even then, however, we may consider, among other things, the statute's objectives, its legislative history, and the consequences of a particular construction." Id.
            Article 17.19 provides:
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(a) Any surety, desiring to surrender his principal and after notifying the principal's attorney, if the principal is represented by an attorney, in a manner provided by Rule 21a, Texas Rules of Civil Procedure, of the surety's intention to surrender the principal, may file an affidavit of such intention before the court or magistrate before which the prosecution is pending.
                        . . . .
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(b) If the court or magistrate finds that there is cause for the surety to surrender his principal, the court shall issue a warrant of arrest or capias for the principal. It is an affirmative defense to any liability on the bond that:
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(1) the court or magistrate refused to issue a warrant of arrest or capias for the principal; and
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(2) after the refusal to issue the warrant or capias the principal failed to appear.
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(c) If the court or magistrate before whom the prosecution is pending is not available, the surety may deliver the affidavit to any other magistrate in the county and that magistrate, on a finding of cause for the surety to surrender his principal, shall issue a warrant of arrest or capias for the principal.
Tex. Code Crim. Proc. Ann. art. 17.19 (Vernon Supp. 2004) (emphasis added).
            Refusal is defined as "[t]he denial or rejection of something offered or demanded." Black's Law Dictionary 1285 (7th ed. 1999). We hold that, for refusal to occur under Article 17.19, the thing being refused (in this case an affidavit to go off bond) must first be offered by the party requesting approval and in some manner called to the attention of the magistrate. This reading of the statute is consistent with its plain language and its obvious intended purpose of first requiring judicial review of items such as affidavits to go off bond before those instruments result in the issuance of something as powerful as a warrant for a defendant's arrest. See Tex. Code Crim. Proc. Ann. art. 17.19 (b), (c) (requiring magistrate find an affidavit to surrender principal be supported by "cause"); Hernandez v. State, 600 S.W.2d 793, 794â95 (Tex. Crim. App. [Panel Op.] 1980) (reversing defendant's heroin conviction because drugs were found as a result of a search that occurred based on an Article 17.19 capias warrant that had been issued by the deputy district clerk rather than by the magistrate).
            Paulette Davis, an agent for Cowboy, testified she never personally talked to the trial court about granting the affidavit to go off bond, nor did she ever approach the judge or the court coordinator with the affidavit to go off bond so as to allow the judge to sign or refuse to sign the document. As such, there is no evidence in the record to show the trial court denied or otherwise refused to grant the affidavit to go off bond because there is no evidence in the record before us to show the affidavit to go off bond was presented for the court's approval or refusal.
            Further, the statute provides the surety a remedy if the original magistrate is not available. The surety may "deliver" the affidavit to another magistrate in the county and "on a finding of cause for the surety to surrender his principal, shall issue a warrant . . . ." See Tex. Code Crim. Proc. Ann. art. 17.19(c). Delivery is "[t]he formal act of transferring or conveying something, such as a deed; the giving or yielding possession or control of something to another." Black's Law Dictionary 440 (7th ed. 1999). There is no evidence that the original magistrate was unavailable or that the affidavit was delivered to another magistrate.
            Cowboy sites McConathy v. State, 545 S.W.2d 166 (Tex. Crim. App. 1977), for its position that the trial court erred. In McConathy, a bonding agent secured the principal's release by posting a $200.00 surety. Thereafter, the principal failed to appear in court and the judge ordered a bond forfeiture. Pursuant to a local custom, however, the surety was allowed a twenty-day grace period in which to locate and surrender the principal. The surety was able to surrender the principal within that time frame. For reasons unknown, the defendant was then again released from jail, with the sheriff using the bond previously posted by the bonding agent as the assurance the defendant-principal would return for trialâeven though the sheriff did not first secure the bonding agent's consent to release the principal from jail on that original bond. The principal again failed to appear for trial, and the State then successfully prosecuted the forfeiture case, from which judgment the surety appealed to the Texas Court of Criminal Appeals. Id. at 166â67.
            On review, the Texas Court of Criminal Appeals reversed the trial court's judgment of forfeiture. The court found the bonding company should not have been liable for the defendant's second bond forfeiture when the bonding company did not consent to the principal's release under the original bond after the principal had been surrendered following the first bond forfeiture. Id. at 168. The court went on to state that a trial court has no discretion to refuse to issue a warrant pursuant to a properly filed affidavit of surety. Id. at 168â69. The court's opinion did not, however, go so far as to say the mere filing of an affidavit absolves the surety of any potential forfeiture liability. Therefore, we do not read McConathy to support Cowboy's proposition (that the mere filing of an affidavit to go off bond, without requiring the affidavit to be affirmatively presented to the magistrate for signature or refusal, is sufficient to satisfy the elements of the affirmative defense outlined in Tex. Code Crim. Proc. Ann. art. 17.19).
            We affirm the trial court's judgment.
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                                                                        Jack Carter
                                                                        Justice
Date Submitted:Â Â Â Â Â Â Â Â Â Â January 2, 2004
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â January 14, 2004
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In The
Court of Appeals
                       Sixth Appellate District of Texas at Texarkana
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                                               ______________________________
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                                                            No. 06-11-00035-CR
                                               ______________________________
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                                     CHRISTINE L. CAMP, Appellant
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                                                               V.
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                                    THE STATE OF TEXAS, Appellee
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                                      On Appeal from the 188th Judicial District Court
                                                            Gregg County, Texas
                                                         Trial Court No. 39278-A
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                                         Before Morriss, C.J., Carter and Moseley, JJ.
                                       Memorandum Opinion by Chief Justice Morriss
                                                     MEMORANDUM OPINION
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           On the basis of a tip from a confidential informant, authorities obtained a warrant to search Christine L. CampÂs Gregg County residence. The search uncovered cocaine. From CampÂs conviction for possession of cocaine, in an amount of four grams or more but less than 200 grams, with intent to deliver, and her sentence of five years confinement, Camp appeals, complaining that the trial judge erroneously did not recuse and that Camp was erroneously denied the identity of the confidential informant. We affirm the trial courtÂs judgment, because (1) no recusal issue has been preserved for review and (2) Camp did not establish a right to learn the confidential informantÂs identity.
(1)Â Â Â Â Â Â Â No Recusal Issue Has Been Preserved for Review
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           Camp argues that recusal of the trial judge was required because he signed the probable cause affidavit authorizing officers to search CampÂs home.[1] Rule 18a of the Texas Rules of Civil Procedure sets forth procedural requirements for seeking recusal.  See Barron v. Attorney Gen., 108 S.W.3d 379, 382 (Tex. App.ÂTyler 2003, no pet.); Gill v. Tex. DepÂt of Criminal Justice, Institutional Div., 3 S.W.3d 576, 579 n.3 (Tex. App.ÂHouston [1st Dist.] 1999, no pet.); see also Tex. R. Civ. P. 18a. ÂAt least ten days before the date set for trial . . ., any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case. Tex. R. Civ. P. 18a(a). When a timely motion is filed, Âthe judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion. Tex. R. Civ. P. 18a(c).  This civil rule applies to criminal cases. Ex parte Sinegar, 324 S.W.3d 578, 581 (Tex. Crim. App. 2010) (citing Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (en banc)); DeLeon v. Aguilar, 127 S.W.3d 1, 5 n.3 (Tex. Crim. App. 2004) (orig. proceeding).
           The right to complain of a judgeÂs refusal to recuse is waived if a party does not comply with the mandatory requirements of Rule 18a.  Barron, 108 S.W.3d at 382; see Gill, 3 S.W.3d at 579.  Under the rule, the party shall file a timely, written, and verified motion to recuse.  Tex. R. Civ. P. 18a; see Aguilar, 127 S.W.3d at n.3; Barron, 108 S.W.3d at 382Â83; Gill, 3 S.W.3d at 579.  Therefore, absent a timely, written, and verified motion to recuse, a party fails to preserve any issue for appeal.  Barron, 108 S.W.3d at 383 (noting possible exception regarding timeliness); see Gill, 3 S.W.3d at 579.  In a criminal case, a trial judge has no duty to recuse or refer if the recusal motion is not timely filed. Aguilar, 127 S.W.3d 1, 5 n.3.
           The following discussion, which occurred at the beginning of the hearing on CampÂs motion to require disclosure of confidential informants, is the only hint in the record suggesting that Camp wished for the trial judge to recuse:
[Defense Attorney]:Â Â Â And, Your Honor, just priorÂjust for the record, I donÂt know ifÂif itÂs up to the Court, the actual probable causeÂor the affidavit was signed by you for the search warrant, so I donÂt know if that has any bearing.
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THE COURT:Â I donÂt think that disqualifies me from hearing it.
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[Defense Attorney]: Okay, Your Honor. I just wanted to put that on the record.
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Camp failed to file a motion to recuse complying with the requirements of Rule 18a. Therefore, Camp Âwaived [her] appellate complaint related to recusal. Arnold, 853 S.W.2d at 545. We overrule this point of error.
(2)Â Â Â Â Â Â Â Camp Did Not Establish a Right to Learn the Confidential InformantÂs Identity
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           Camp also claims the trial court erred in not ordering disclosure of the identity of the confidential informant providing the information on which the search warrant was based. To provide clarity, we emphasize here that Camp does not challenge the issuance of the search warrant itself. Therefore, this analysis should not be confused with a probable-cause analysis under the United States Constitution. The issue is whether, under Rule 508(c) of the Texas Rules of Evidence, the identity of the informant should have been disclosed.
           Under applicable rules, the State has a Âprivilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer. Tex. R. Evid. 508(a). But there are exceptions to that privilege. Disclosure may be required, Âif it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony . . . on guilt or innocence in a criminal case or Âif information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible. Tex. R. Evid. 508(c)(2), (3). Because the informant was not present when officers executed the search warrant and found the contraband, the informant would not be expected to be able to provide testimony on guilt or innocence in this possession case.[2] Thus, our focus is appropriately on whether subparagraph (3) of Rule 508(c) would require disclosure of the informantÂs identity, on the basis that the informant was relied on to furnish the legality for the search that turned up the contraband and that the trial Âcourt is not satisfied that the informant was Âreasonably believed to be reliable or credible.Â
           Just filing a motion for disclosure under Rule 508 does not entitle a defendant to a Âhearing, much less compel disclosure.  Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991). The defendant has the threshold burden of demonstrating that the State must disclose the informerÂs identity. Id.; Hernandez, 956 S.W.2d at 702. ÂThe burden is set low so that even if the defendant does not know the nature of the informerÂs testimony, the defendant may have an opportunity to demonstrate to the court how the informantÂs testimony may be relevant. Hernandez, 956 S.W.2d at 702.
           Although the burden is low, it is real; evidence beyond Âmere conjecture or speculation must demonstrate that the informerÂs identity is necessary.  Bodin, 807 S.W.2d at 318; Hernandez, 956 S.W.2d at 702. ÂThe informerÂs potential testimony must significantly aid the defendant.  Bodin, 807 S.W.2d at 318.  Only after such a showing is the trial court required to hold an in camera hearing. Id. at 319.  We review the trial courtÂs determination in this matter for an abuse of discretion. Ford v. State, 179 S.W.3d at 210 (citing Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. [Panel Op.] 1980)).
           The only evidence presented during the hearing on the motion to disclose was the probable-cause affidavit stating:
That, Affiant was contacted by a confidential informant that stated that he/she had been to [CampÂs home] within forty eight (48) hours of the issuance of this warrant and said confidential informant further advised that he/she did at that time observe the suspect . . . in possession of a quantity of cocaine.
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That Affiant was advised by the confidential informant that the suspected parties . . . kept cocaine on their persons and that the cocaine was packaged in plastic bags.
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That Affiant believes the confidential informantÂs information to be true and reliable, because said confidential informant has provided Affiant with information in the past.
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That Affiant knows that the confidential informant is familiar with the appearance of cocaine.
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That Affiant has knowledge of Christine Camp residing at this residence for the past 4Â6 years.
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            ÂRule 508(c)(3) requires an in camera hearing where information from an informant is used to establish probable cause, and the judge is not satisfied that the informant was reasonably believed to be reliable or credible. Murray, 864 S.W.2d at 118. Pointing to the probable cause affidavit, CampÂs counsel argued that Âwe donÂt know whether this person or persons are credible or reliable. . . . The . . . information given by the confidential informant is vague and generic. . . . We donÂt know whether or not [the confidential informant] had a criminal history. But the issue is not whether the parties or the trial court might now believe or disbelieve the informant, but whether the trial court was satisfied that the informant was reasonably believed to be reliable or credible at the time the search warrant was applied for. See Ashorn v. State, 802 S.W.2d 888, 892 (Tex. App.ÂFort Worth 1991, no pet.); Thompson v. State, 741 S.W.2d 229, 231 (Tex. App.ÂFort Worth 1987), pet. refÂd, 763 S.W.2d 403 (Tex. Crim. App. 1989).Â
           Counsel also added, without specification, that there were Âmany discrepancies in what the affiant said versus what was actually found. But the issue is also not whether the informant might, after the fact, prove himself or herself unreliable or might have been mistaken as to certain facts discovered on execution of the search warrant; the issue is whether the trial court was satisfied that the informant was reasonably believed reliable when the warrant was applied for. See Ashorn, 802 S.W.2d at 892; Thompson, 741 S.W.2d at 231. The affiant averred belief that the information from the confidential informant was reliable based on past dealings. The basis for this belief was cited in the affidavit: the informant was familiar with the appearance of cocaine, had observed cocaine in CampÂs home, and knew that Camp had lived in the residence Âfor the past 4-6 years. Thus, CampÂs argument questioning the informantÂs reliability was based merely on speculation, not on any evidence.
           Because Camp did not challenge the issuance of the warrant itself or argue that the probable-cause affidavit did not make out probable cause to support the warrantÂs issuance, she did not develop any evidence to subvert the trial courtÂs implicit finding that the informant was reasonably believed. Thus, the Rule 508(c)(3) exceptionÂwhere the informantÂs information is relied on to justify getting the evidence, that is, issuing the search warrantÂhas not been triggered. With nothing in the record indicating that the officer, when making out the affidavit seeking the search warrant, did not believe the informant to be reliable or credible, even a direct challenge to the warrant would not require a disclosure of the informantÂs identity. See Blake v. State, 125 S.W.3d 717 (Tex. App.ÂHouston [1st Dist.] 2003, no pet.). Nothing in this record undermines the trial courtÂs apparent finding of the informantÂs reliability.
           Consequently, Camp did not meet the threshold burden to show that the Rule 508(c)(3) exception to the StateÂs privilege applied. The trial court did not abuse its discretion in overruling CampÂs motion seeking to require disclosure of the confidential informantÂs identity. See Washington v. State, 902 S.W.2d 649, 656 (Tex. App.ÂHouston [14th Dist.] 1995, pet. refÂd); Ashorn, 802 S.W.2d at 892; Bosquez v. State, 792 S.W.2d 550, 552 (Tex. App.ÂEl Paso 1990, pet. refÂd).
           We affirm the trial courtÂs judgment.
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                                                                      Â
                                                                                   Josh R. Morriss, III
                                                                                  Chief Justice
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Date Submitted:Â Â Â Â Â Â Â Â Â December 5, 2011
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â December 22, 2011
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Do Not Publish
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[1]The grounds for disqualification and recusal of judges are listed in Texas Rule of Civil Procedure Rule 18b.
[2]ÂIf it appears from the evidence or from other showing that the informer may be able to give . . . relevant testimony [as to guilt or innocence], an in camera hearing is required where the State has the opportunity to show that the testimony is not necessary to a fair determination of the issues of guilt and innocence. Murray v. State, 864 S.W.2d 111, 118 (Tex. App.ÂTexarkana 1993, pet. refÂd). In making this determination, we may consider whether the informant participated in the offense, was present at the time of the offense or arrest, or was otherwise shown to be a material witness to the transaction or as to whether the defendant knowingly committed the offense charged. Id. ÂHowever, when the informantÂs information is used only to establish probable cause for a search warrant and the informant was neither a participant in the offense for which the defendant is charged, nor present when the search warrant was executed, the identity of the informant need not be disclosed because his testimony is not essential to a fair determination of guilt. Ford v. State, 179 S.W.3d 203, 210 (Tex. App.ÂHouston [14th Dist.] 2005, pet. refÂd).
               Camp claims Âthat the informant is a necessity or would be necessary as a witness to determine CampÂs guilt or innocence.  The conclusion that the confidential informant would be necessary in determining CampÂs guilt or innocence was not based on any evidence presented to the trial court, and there was no attempt to demonstrate how any testimony by the informant would be relevant to CampÂs guilt or innocence. There was no indication from the record, including the probable cause affidavit, that the informant participated in the offense, was present at the time of the offense or arrest, was otherwise shown to be a material witness to the transaction, or was a witness as to whether Camp knowingly committed the offense charged. ÂThe standard requiring disclosure requires more than speculation that the informant may have relevant evidence.  Hernandez v. State, 956 S.W.2d 699, 702 (Tex. App.ÂTexarkana 1997, no pet.); see Bodin, 807 S.W.2d at 318.
               Moreover, the basis of the charge against Camp was the cocaine seized by officers during a search of CampÂs home, not the information related by the confidential informant. Thus, the confidential informant was not a necessary witness in determining CampÂs guilt or innocence. See Long v. State, 137 S.W.3d 726, 732Â33 (Tex. App.ÂWaco 2004, pet. refÂd) (confidential informant not material witness where informant told officers she had seen defendant manufacturing methamphetamine, because basis of charge was seizure of evidence from defendantÂs homeÂseizure not witnessed by informant). The defendantÂs initial burden is not met where a confidential informant provides only the initial probable cause for a search warrant, not the evidence of guilt used in the prosecution. Id. at 733. We find that Camp did not meet her threshold burden to show that the Rule 508(c)(2) exception to the StateÂs privilege applied.