dissenting.
The majority disagrees with the trial court’s decision so they decide the issue de novo, modify the judgment, and affirm their own decision. Our standard of review is abuse of discretion, not a de novo reconsideration.
The analysis in this case is a review of factors the trial court considers in making its determination whether all or part of the bond amount should be remitted to the surety. The majority, in its purported “review” of these factors, notes that:
*238In applying the Gramercy factors, we find the record reflects the following [then setting out a summary of the record] ....
The majority moves from these observations to its conclusions. Maj. Op. pg. 236. The problem with this statement and their application of the factors is that it is the trial court, not the appellate court that is to consider and apply these factors. We are only to review the trial court’s decision to see if the trial court abused its discretion.
The error in methodology is amply demonstrated by the opinion. After listing the factors the majority believes it must apply to decide the issue, they make the following observations:
(1) ... there is no evidence in the record regarding any cost or inconvenience to the State in regaining custody of Powell....
(2) ...
(3) There is no evidence in the record of Powell’s willful breach of the bond conditions. However, Mr. McKenna failed to present any evidence that it was not a willful breach.
(4) ... There is no evidence of harm to the public during the intervening period.
(5) ...
(6) The record does not show that the government suffered any prejudice in prosecuting the criminal case against Powell.
Maj. Op. pgs. 236-37.
First, we must understand our standard of review. We should conduct a review of the evidence on the various factors to determine if the trial court abused its discretion by not granting the surety an equitable remittitur.
A factor analysis is fundamentally different than an elemental analysis. If this is a factor analysis, and I believe that it clearly is, the presence or absence of evidence on any single factor is not relevant to our review of the trial court’s decision. See In the Interest of B.R.S., 166 S.W.3d 373, 379 (Tex.App.-Waco 2005, no pet.) (Gray, C.J., dissenting). Whereas, if it is an elemental analysis, the absence of evidence on any single element required for relief would result in a judgment against the party with the burden of proof on the element. Id.
Here, the majority is “modifying” the judgment due to an absence of evidence but the party with the burden of proof is receiving the benefit of that “modification.” This is contrary to all established concepts of appellate review.
Further, the majority’s analysis demonstrates that the majority has placed the burden on the State to avoid a remittitur by presenting evidence. This is an erroneous placement of the burden of proof. The burden of proof is on the surety to establish that on equitable grounds a remittitur should be ordered. See Tex.Code Crim. PROC. ANN. art. 22.17 (Vernon 1989). If there is a failure or absence of proof, it is not because the State failed to present evidence or did not show it incurred little or no cost. That burden is on McKenna. Further, the majority’s reliance on the fact that there is no evidence in the record of Powell’s willful breach of the bond conditions, harm to the public, or the prejudice suffered by the government indicates placement of the burden on the State. If McKenna, the surety, wanted these factors to be considered, the burden was on the surety to show, by evidence, that Powell’s breach was not willful, why Powell’s presence was not against the public interest, and why the State was not prejudiced by Powell’s failure to appear. Obviously, the surety failed to meet its burden to do so, but the majority is erroneously allocating this failure to the State and giving McKen-na the benefit of the absence of evidence.
*239The failure of proof falls squarely on the surety — not the State. If the surety did not show up for the special bill of review, the State wins. Likewise, if there is inadequate evidence in the record to justify a remittitur on equitable grounds, the judgment must be affirmed — not modified. There is no more evidence to support the amount to which the majority reduces the forfeiture, $10,000, than there is to support the original forfeiture of $25,000. But it was not the State’s burden to “support” either amount and McKenna certainly has not, nor has McKenna provided evidence to “support” a $15,000 remittitur. The majority is simply making a de novo determination that $25,000 is too much, zero is not enough, but $10,000 is just right.
The healing focused on McKenna’s efforts to locate Powell. Evidence on this single factor was not enough to convince the trial court of the surety’s equitable interest in being granted a remittitur. I find no abuse of discretion.
I respectfully dissent.