### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00201- CV

Robert Mendez d/b/a A-1 Bond ing Com pany, S urety, A ppellan t

v. The State of Texas, App ellee

F ROM CO UNTY COURT AT LAW NO . 1 O F CALDWELL CO UNTY NO. 547 8, H ONO RAB LE EDWARD L. J ARRETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
This is an appea l from a f inal judgme nt in a bond-for feiture suit. On May 7, 2010,
J av i er Silva, the principal, was arr ested and char g ed with resisting arr est. Robert Mendez d / b / a A-1 Bonding Company (Mende z), the surety , filed a bond conditioned on Silva’s subsequent
appea ranc e. On J uly 26, 2010, Mendez filed an “af fidavit to rele ase surety ,” alleg ing that Silva was in fede ral custody

. On the same day , the trial court signe d an order authorizing the issuance of a capia s for the re- arr est of Silva. Silva later failed to appea r in court as require d. Consequently , the trial court issued a judgme nt nisi and decla red the bond forf

eited. See Tex. Code Cr i m. Proc. art. 22.02. Silva was e ventually arr ested unde r a f

ailure to a ppear capia s. Upon notify ing Mendez of the bond-for feiture proce eding s, the trial court conducte d a hearing to finalize the judgme nt. At the hear ing, Me ndez asserte d that he could not be li able on the bond beca

use he had been rele ased as a surety on the bond pursuant to article 17.16 of the TexasCode of Criminal Pro ce d u re . The trial court subsequently rende red final judgme nt ag ainst Silva

and Mend ez , jointly and sever ally , for the full amount of the bond plus costs. Upon Mendez’s
reque st, the court issued finding s of fa ct and c onclusions of law. I n two issues of appe al, Mende z challeng es the trial court’s failure to conclude that he had been rele ased as a surety on the bond. We will affirm the judg ment.

ANALYSIS

At a hear ing to finalize bond forf eiture, “[t] he essential elements of the State’s cause of action

. . . are the bond and the judicial decla ration of the forf

eiture of the b o nd, which is the judgme nt nisi.” Alvarez v. State , 861 S.W .2d 878, 880-81 (Tex. Crim. App. 1992). The judgme nt nisi is prima fac ie proof that the statutory require ments for bond forf eiture have been satisfied. Id

. at 881. The defe ndant must then prove that the statutory require ments have not been complied with

or prove one of the aff

irmative defe nses specifie d by statute. Castaneda v. State , 138 S.W .3d 304, 323 (Tex. Crim. App. 2004).

At the final h ear ing in this case , the State prese nted evidenc e that Mendez was a surety on the bon d and that the statutory require ments for forf eiture had been met. I n response , Mend ez testified that he had filed an “af fidavit to rele ase surety ” explaining that Silva was in the custody of U.S. I mmigra

tion and Customs Enforc ement. Mendez also testified that he had informed the trial court of the circ umstances and that on J uly 26, 2010, the trial court issued an order in
response to his aff

idavit to rele ase surety

. Both Mendez’s aff idavit and the trial court’s order wer e admitted as a single exhibi t at t h e hear ing. I n closing , Mendez arg ued that he could not be held liable on the bond bec ause the trial court’ s J uly 26 order expressly provided for

his relea se.
2On appea l, Mendez does not dispute that Silva failed to appea r befor e the court as require d. Also, Mendez does not arg ue that the S t at e fa iled to prove statutory require ments for
f o r f e it u r e . I n s te a d , in tw o is s u e s , M e n d e z c h a ll e n g e s th e tr ia l c o u r t’ s ju d g me n t o n th e g r o u

n d th a t th e trial court’ s J uly

26 order had pre viously

rele ased him from all liability on the bond. Specifica lly , in his first issue on appea l, Mendez ar gu es t h at the evidenc e is fac tually insufficient to support the trial court’s finding that “[o] n May 7, 2010, Def endant Robert Mendez d/b / a A- 1 Bo n d i ng Company posted a thirty -two thousand ($32,000) Dollar surety bond to obtain Def endant Fr ancisc o J avier Silva’s rele ase from Fe dera l custody (I CE).” Secon d , M en d ez argue s that the trial court abused its discretion in enter ing judgme nt for the full amount of the bond afte r Silva’s re- arr est prior to entry of final judg ment. 1
We first consider whether the trial court’s deter mination that “[o] n May 7, 2010, Def endant Robert Mendez d/b/a A-1 Bonding Company posted a thirty -two thousand ($32,000) Dollar surety bond to obtain Def endant Fr ancisc o J avier Silva’s rele ase from Fe dera l custody (I CE)” is supported by fac tually sufficie nt evidenc e. I n response to Mendez’s arg ument, the State conce des
t h at t h er e is no evidenc e in the rec ord supporting the finding

. Howeve r, the State arg ues that t h e undisputed evidenc e in the re cord would support a finding t hat Mende z post ed a $3,200 bond a nd that the amount of $32,000 is mere ly a ty pog raphic al er

ror in the tria l court’s orde r.

When, as here , the trial court make s finding s of fac t, those finding s are equivalent to 1 finding s made by a jury

. Anderson v. City of Seve n Points , 806 S.W .2d 791, 791 (Tex. 1991). We revie w the trial c ourt’s finding s for leg al and fac tual sufficie ncy . Seasha Pools , Inc. v . Hardister , 391 S.W .3d 635, 639 (Tex. App.—Austin 2012, no pet.); see also Tex. Code Crim. Proc. art. 44.44 (providing that “[bond-forf eiture proce eding s] shall be reg ulated by the same rules that g overn civil actions wher e an appea l is taken” ). We r eview the trial court’ s conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand , 83 S.W .3d 789, 794 (Tex. 2002). 3The parties do not explain, nor is it clea r, how Mendez’s posting a bond with reg ard
to Silva’s fede ral custody —whether $32,000 or $3,200—is rele vant to the trial court’s judgme nt in this case. However , to the ex tent this fac t is rele vant to Mendez’s def ense tha t he was r elea sed as

a surety , we will assume without deciding that the evidence supporting it is fac tually insuffi ci en t

. Acc ording ly , we revie w th e trial court’s deter mination that Mendez was liable on the bond in the absenc e of this fa ct.

I n his second issue on appea l, Me ndez a rg ues that he was rele ased from liability on the bond by virtue of the J uly 26 order issued by the trial court in response to his aff idavit to rele ase surety . The orde r, in its entirety , provides as f ollows:

On this the 26 day of J uly 2010, came to be hear d the application of Robert Mendez surety on the bond of the D efe ndant her ein, and the Court be ing of the opinion that such applicati o n b e granted, it is there fore , order ed, adjudg ed, and decr eed by the Court that the Clerk be, and he is here by direc t ed t o i s s u e an alias capia s for the rea rre st of the Def

endant, and that from such time as the Defendant shall be held in custody under a capias

from this court, the surety shall be released and relieve d from all further responsibilities and obliga tion of the said bond.
(Emphasis added.) I n its finding s of fac t a nd conclusions of law, the trial court found that on May 11, 2011, Silva was arr ested a nd held under

a ca pias issued by the trial court. Me ndez arg ues that based on this finding and the plain lang uag e of the trial court’ s J uly 26 order , he wa s relea sed as a surety and that conse quently

the trial cour

t a bused its discr etion in e ntering judgme nt a g ainst him. Article 17.16 of the Code of Criminal Procedur e provides the proce dural mecha nism that, when followed, rele ases a surety from his bond obliga tions. The vers i on of article 17.16 applicable to this case , titled “ Dischar g e of liability ; Surrende r or incar cer ation of principal befor e forf eiture,” provides:

4(a) A surety may befor e for feiture relieve himself of his underta king by : (1) surre ndering the acc used into the custody of the sheriff of the county wher e the pr osecution is pending ; or (2) delivering to the sheriff of the county wher e t h e prosec ution is pending an aff

idavit stating that the acc used is incar cer ated in fede ral custody , in the custody

of any state, or in any

county in this st ate. (b) For the purposes of S ubsect i on (a) (2) of this article , the bond is discharg ed and the surety is absolved of liability on the bond on the sheriff ’s verific ation of the inca

rce ration of the a ccuse d.

Tex. Code Crim. P roc. a

rt. 17.16. 2
“B y its plain lang uag e, Article 17.16 rele ases a surety from liability on a bond when verific ation of the principal’s incar cer ation in another jurisdiction is reque sted and the sheriff is able
to verify t h at incar cer ation.” Castaneda , 138 S.W .3d at 322; Allegheny Cas. Co. v. State , 163
S.W .3d 220, 226 (Tex. App.—El Paso 2005, no pet.); see Tex. Code Crim. Proc. art. 17.16. Upon verific ation, the s urety is automatically rele ased from liability , and no fur ther action by the s urety

or the court is require d. Castaneda , 138 S.W .3d at 322. Acc ording ly , the Court’s J uly 26 order was

unnece ssary

for the pur

pose of r elea sing Me ndez from liability under a rticle 17.16.

Article 17 .16 of t he C ode of Criminal Procedur e was amende d, eff ective May 19, 2011. 2 See Act of Ma

y 5, 2011, 82d L eg ., R.S., ch. 87, § 1, 2011 Tex. Sess. L aw Serv. 444, 444-45. The undisputed evidenc e establishes that the bail bond at issue in this case was executed on May 7, 2010, befor e th e ef

fec tive date of the amendment. Id

. § 2 (providing that amendment to article 17.16 “applies only to bail bond that is executed on or after the eff ective date of this Act”)

. As a result, this case is g overne d by the prior version of article 17.16, which beca me eff ective in 1987. See Act eff ective J an. 1, 1966, 59th L eg ., R.S., ch. 722, § 1, 1965 Tex. Gen. L aws 317, 377-78, amende d by Act of June 1, 1987, 70th L eg ., R.S., ch. 1047, § 1, 1987 Tex. Gen. L aws 3513, 3513 (codifie d as Tex. Code of Crim. P roc. a rt. 17.16). All re fer ence s to article 17.16 will be to that ver sion.

5To be entitled to the aff irmative defe nse of rele ase under article 1 7

. 1 6 i n bondforf eiture proce eding s, a surety defe ndant must raise the defe nse and ultimately establish that he has fully complied with the terms of the article

. See id

. at 322-23. I n this c ase, Mendez arg ued befor e the trial cour

t that he was e ntitled to a relea se pursua nt to article 17.16. Howeve r, Mende z failed 3

to prese nt any evidenc e tending to show the essential elements of rele ase under article 17.16(a) (2). 4 Upon revie wing the rec ord, we conclude that there is no evidenc e that Mendez delivere d an aff idavit
reg ard i n g Silva’s custody to the sheriff of Caldwell County

. See id

. art. 17.16(a) (2). Simi larly , 5
there is no evidenc e that the sheriff verifie d Silva’s fede ral custody

. See id

. art. 17.16(a) (3). Be cause Mendez failed to establish the essential elements of his defe nse under article 17.16 as a matter of law, the trial court did not err in failing to conclude that Mendez h ad b ee n rele ased from liability on the bond under

article 17.16.
On appea l, Mendez also appea rs to arg ue that, separ ate and apar t from article 17.16, the trial court’s J uly 26 order rele ased him from liability on the bond upon t h e re -a rr es t of Silva. This arg ument assumes that the trial court (1) had authority to rele ase Mendez from his bond

Be cause the trial court issued finding s of fac t and conclusions of law, M en dez was also 3 require d to reque st finding s in support of his aff irmative defe nse in order to avoid waiver of the issue on appea l. Intec Sys. v. L o w r ey , 2 30 S.W .3d 913, 918 (Tex. App.—Dallas 2007, no pet.). Her e, Mendez did not file any reque sted finding s on any issue rela ted to his defe nse of rele ase pursuant to article 17.16 o f t h e Code of Criminal Procedur e. Neve rtheless, we will assume without deciding that Mendez adequa

tely prese rved the i s sue of rele ase under article 17.16. See Tex. R. App. P. 33.1(a) (1)( A) (r equiring appellant to demonstra te that complaint was made to tr ial court by timely reque st, objection, or motion). There is no dispute that Mendez did not s u rrender Silva into the custody of the sheriff

. 4 See Tex. Code Crim. P roc. a rt. 17.16(a) (1). Mendez testified that he “filed an aff idavit to rele ase surety .” Howeve r, it is unclea r wher e 5 Mendez filed the a ffidavit, and the document does not a ppear in the cler

k’s re cord on a

ppeal. 6obliga tions, (despite Mendez’s failure to demonstrate that he complied with the proce dures set forth

in article 17.16) and (2) was eff ectively es t o p p ed from later retra cting its order of rele ase in the subsequent bond-for feiture hear ing. How ev er, Mendez has provided no authority , arg ument, or citation to the rec ord in support of the proposition that the trial court possesses the authority , whether inhere ntly or by statute, to relea se a sur ety from his bond obliga tions. See Tex. R. App. P. 38.1(i) (appe llant’s brief must c ontain clea r and c oncise arg ument for contentions made, with a ppropriate citations to authorities and to rec ord). I n addition, Mendez has provided no authority , arg ument, or citation to the rec ord in support of the proposition that t h e t ri al co u rt is estopped in later bondforf eiture proce eding s from modify ing or retra cting an order of rele ase. Consequently , to the extent Mendez arg ues that the trial court rele ased him pursuant to some authority other than article 17.16, this arg ument is waived. We over rule Mende z’s first and second issues on a ppeal.

CONCLUSION Having conclude d that the trial court did not err in enter ing judgme nt ag ainst Mendez, we a ffirm the judg ment of the trial c ourt.

__________________________________________ Scott K. Field, Just ice
Be fore J ustices Pury ear , Pemberton and F ield
Affir med Filed: Oc tober 31, 2013

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