IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE THIRTEENTH COURT OF APPEALS
HIDALGO COUNTY
OPINION ON THE STATE'S
MOTIONS FOR REHEARING (1)
These are bail bond forfeiture cases. In each case, the Thirteenth Court of Appeals affirmed the trial court's final judgment for the State and against appellant. Castaneda v. State, 55 S.W.3d 729, 732 (Tex.App.-Corpus Christi 2001). We affirm the judgments of the court of appeals.
The Relevant FactsThe principals in these cases - Mario Ortiz Hurtado, Carlos Javier Ramos Medrano, and Oscar Oviedo Gutierrez - were all Mexican nationals arrested in Hidalgo County and charged with felony drug possession. Appellant, the owner of a bail bond company, posted a bail bond for each of the principals. (2) Two of the bail bonds each contained a note to the effect that the principal had violated federal immigration regulations and would be taken into custody by the United States Immigration and Naturalization Service (INS). The third bail bond contained no such note, but it is undisputed that employees of the bail bond company knew that all three principals were subject to pre-existing INS detainers.
Once appellant posted the bail bonds, Hidalgo County officials released the principals from custody and handed them over to INS officials, who in turn incarcerated them in an INS facility in Los Fresnos. Subsequently, it appears, federal immigration judges ordered the principals deported, but the record evidence is silent as to when or whether those deportation orders were actually carried out. The record evidence is also silent as to when or even whether the principals were released from the Los Fresnos facility.
None of the principals appeared in the Hidalgo County court on the appointed day or on any day thereafter. (3) Consequently, the State moved, in each case, for bond forfeiture, and the trial court entered, in each case, a judgment nisi. The trial court later consolidated the cases for a bond forfeiture trial, and at that trial appellant sought exoneration from liability on the basis of Article 22.13(3) of the Texas Code of Criminal Procedure. (4) Appellant argued that the principals had been deported and that those deportations amounted to "uncontrollable circumstances" within the meaning of Article 22.13(3). The trial court rejected appellant's Article 22.13(3) affirmative defense, however, and entered final judgment for the State in each case. The final judgments awarded the State the full amounts of the bonds plus 6% interest calculated from the date the trial court signed the judgments nisi.
On direct appeal, appellant reiterated his claim that he was entitled to exoneration from liability on the basis of Article 22.13(3). Appellant also argued, for the first time, that the trial court erred in entering final judgments for the State because the bail bonds in question were "not ... valid and binding undertaking[s] in law." Finally, appellant argued, again for the first time, that the trial court erred in entering final judgments "for the full amount[s] of the forfeited bail bond[s] plus interest ... at the rate of 6%."
The court of appeals rejected all of appellant's arguments and affirmed the judgments of the trial court. Castaneda v. State, 55 S.W.3d at 732. We granted appellant's petitions for discretionary review to determine whether the court of appeals erred. (5) See Tex. R. App. Proc. 66.3(b).
AnalysisOn original submission, we held that the court of appeals erred in affirming the judgments of the trial court because, "by operation of law, appellant had been released from liability on the three bonds" before the State moved for bond forfeiture. Castaneda v. State, Nos. 2012-01, 2013-01 & 2015-01 (Tex.Crim.App.-July 2, 2003), slip op. at 5. We explained further:
... By its plain language, art. 17.16[ (6)] releases a surety from liability on a bond when verification of the principal's incarceration in another jurisdiction is requested and the sheriff is able to verify that incarceration. When incarceration in the receiving jurisdiction is verified, the surety is automatically released from liability; neither further action by the surety nor approval by the court is required....
In these cases, the other jurisdiction was federal. It appears from the record that appellant was hired to post bond so that the principals would be transferred to federal custody. After the bonds were posted and his principals transferred into INS custody, appellant filed ... the forms requesting verification by the Hidalgo County sheriff. In these three cases, the sheriff verified that the principal was in INS custody....
Id. at 4-5 (emphasis in original).
In its motions for rehearing, the State correctly points out that in none of the three cases did appellant actually meet Article 17.16's plain requirement that the surety "deliver[] to the sheriff ... an affidavit stating that the accused is incarcerated in federal custody." Consequently, our analysis on original submission was fatally flawed.
Furthermore, appellant did not assert an Article 17.16 defense at trial. The trial court's judgments will not be reversed on the basis of Article 17.16. See Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App. 2002) (a trial court's decision will not be reversed on a theory the trial court did not have an opportunity to rule upon).
In ground for review (7) number one in each case, appellant argues two points: first, that, under Article 17.16, he was released from liability on the bond before the State moved for bond forfeiture; and second, that, for various reasons, the surety bond "was ... not a valid and binding undertaking in law." Since these two arguments were not raised in the trial court, we will not consider them. We overrule ground for review number one in each case.
In ground for review number two in each case, appellant argues that he "was entitled to ... exoneration [from liability] pursuant to Article 22.13 § 3 [sic] ... because the principal[s'] failure to appear for [their] court setting[s] was a result of an uncontrollable circumstance which arose through no fault of either the principal[s] or the appellant." (8) To prevail with the affirmative defense provided by Article 22.13(3), appellant was required to prove, in each case, that (1) some uncontrollable circumstance prevented the principal's appearance at court; (2) the principal's failure to appear arose through no fault of his own; and (3) the principal appeared before final judgment to answer the accusation against him or had sufficient cause for not appearing. Hill v. State, 955 S.W.2d 96, 101 (Tex.Crim.App. 1997). As we noted previously, the record evidence is silent with respect to what happened to the principals once they were incarcerated in the INS facility in Los Fresnos. It is not known when or even whether they were actually deported, or when or even whether they were released from the INS facility. On this record, then, the trial court, as the trier of fact, could have reasonably concluded, in each case, that appellant failed to prove by a preponderance of the evidence the first and third prongs of the Article 22.13(3) affirmative defense. In other words, the trial court could have reasonably concluded that appellant failed to prove the principals' immigration status and whereabouts on the days they were scheduled to appear in state court. Even if the principals' incarceration in Los Fresnos or their alleged deportations were considered "uncontrollable circumstances" preventing their appearance in court, on this record the trial court could have reasonably concluded, in each case, that appellant failed to prove that the principals' failure to appear arose through no fault of their own, since they were apparently in this country illegally.
Appellant also makes other arguments under ground for review number two in each case, but he failed to make those arguments in the trial court, so we will not consider them. We overrule ground for review number two in each case.
Finally, in ground for review number three in each case, appellant argues that, "under Texas law, the State is not entitled to recover interest on a bail bond forfeiture judgment in the full amount of the forfeited bail bond." Again, however, appellant failed to make such an argument in the trial court, so we will not consider it. See Allright, Inc., v. Pearson, 735 S.W.2d 240 (Tex. 1987) (plaintiff, who failed to complain to the trial court regarding its failure to award pre-judgment interest, may not complain of that fact on appeal). We overrule ground for review number three in each case.
We affirm the judgments of the court of appeals.
DELIVERED JUNE 30, 2004
PUBLISH
1. Our opinion on original submission disposed of five bail bond forfeiture cases, Nos. 2012-01, 2013-01, 2014-01, 2015-01, and 2016-01. The State filed motions for rehearing in only three of those cases, Nos. 2012-01, 2013-01, and 2015-01.
2. Appellant posted bond for Hurtado on June 21, 1997, for Ramos on December 18, 1997, and for Gutierrez on March 9, 1998.
3. Hurtado was scheduled to appear in court on September 23, 1997; Ramos was scheduled to appear in court on January 28, 1998; and Gutierrez was scheduled to appear in court on April 9, 1998.
4. At the time of the hearing, Article 22.13 provided in relevant 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.
5. In all three cases, appellant's grounds for review are exactly the same, to wit:
(1) Whether a bail bond surety is liable on a bail bond forfeiture when its principal is deported prior to the time that the principal was required to appear in a Texas court.
(2) Whether a bail bond surety is liable after executing a bail bond in which the Sheriff never releases the principal on the bail bond but rather transfers the principal to the federal Immigration and Naturalization Service.
(3) Whether a bail bond forfeiture final judgment in which there is no remittitur can bear any interest.
6. Article 17.16 of the Texas Code of Criminal Procedure provides:
(a) A surety may before forfeiture relieve himself of his undertaking by:
(1) surrendering the accused into the custody of the sheriff of the county where the prosecution is pending; or
(2) delivering to the sheriff of the county where the prosecution is pending an affidavit stating that the accused is incarcerated in federal custody, or in the custody of any state, or in any county of this state.
(b) For the purposes of Subsection (a)(2) of this article, the bond is discharged and the
surety is absolved of liability on the bond on the sheriff's verification of the incarceration
of the accused.
7. In his brief in this Court, appellant terms his grounds for review "points of error."
8. See footnote three, supra.