### NO. 03-15-00121-CR IN THE COURT OF APPEALS THIRD DISTRICT OF TEXAS AT AUSTIN, TEXAS
TOM BENSON, Defendant-Surety, Appellant,
vs. THE STATE OF TEXAS, Appellee. Appealed from the County Court at Law Number One Sitting at Travis County, Texas Trial Court No. C-1-CV-14-002294 The Honorable Todd Wong, Presiding APPELLANTS' BRIEF

TOM BENSON Texas Bar No. 02170500 900 Jackson St., Ste. 750 Dallas, Texas 75202-4461 (214) 742-9898 Telephone (214) 742-9879 Fax tomrbenson@gmail.com APPELLANT PRO SE ACCEPTED 03-15-00121-CR 5184558 THIRD COURT OF APPEALS

AUSTIN, TEXAS 5/6/2015 11:26:48 PM JEFFREY D. KYLE

CLERK

### IDENTITY OF PARTIES AND COUNSEL Appellant Tom Benson Texas Bar No. 02170500 900 Jackson St., Ste 750 Dallas, Texas 75202-4461 (214) 742-9898 Telephone (214) 742-9879 Fax tomrbenson@gmail.com



### Appellee The State ofTexas 

### Counsel (Trial and Appeal) Pro Se



### Counsel (Trial and Appeal) Tim Labadie Assistant County Attorney Travis County Texas Bar No. 11784853 P.O. Box 1748 Austin, Texas 78767-1748 (512) 854-9513 Telephone (512) 854-4808 Fax tim.labadie@traviscountytx.gov

ii

### STATEMENT CONCERNING ORAL ARGUMENT
Because this appeal contains arguments based upon established law, Appellant does not believe that oral argument would be helpful to the Court.

iii

### TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL
............................ ii 

### STATEMENT CONCERNING ORAL ARGUMENT
................... iii 

### INDEX OF AUTHORITIES
.......................................... v 

### STATEMENT OF THE CASE
...................................... vii 

### POINTS OF ERROR PRESENTED
................................. viii STATEMENT OF FACTS........................................... 1 

### POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING THE STATE'S MOTION FOR SUMMARY JUDGMENT. ................................. 3 POINT OF ERROR 1:
............................................. 3 Standard ofReview. ........................................... 3 Argument and Authority. ...................................... 5 

### STATE PRESENTS PRIMA FACIE CASE
........................ 5 BURDEN SHIFTS TO SURETY
................................ 5 AFFIRMATIVE DEFENSE PROVIDED BY art. 22.13(a)(5)
........ 6 SURETY'S SUMMARY JUDGMENT PROOF
.................... 7 RELIEF GRANTED BY TRIAL COURT
......................... 9 CONCLUSION. .................................................. 10 

### REQUEST FOR RELIEF..................•........................ 10 CERTIFICATE OF COMPLIANCE
................................. 11 CERTIFICATE OF SERVICE
...................................... 12 APPELLANT'S APPENDIX
........................................ 13

lV

### INDEX OF AUTHORITIES CASES 

### Alvarez v. State, 861 S.W. 2d 878, 881 (Tex. Cr. App. 1992)
............ 3, 5, 9 

### City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)

.................................................................. 4 

### Deckard v. State, 605 S.W.2d 918 (Tex. Cr. App.1980)
.................... 5 

### Deckard v. State, 615 S.W.2d 717, 718 (Tex. Cr. App. 1981)
................ 5 

### GreatAm. ReserveIns. Co. v. SanAntonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). .................................................. 4 

### Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995)
... 4 

### Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004)
....... 3 

### Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984)
................. 9 

### Nichols v. Smith, 507 S.W.2d 518, 520 (Tex. 1974)
...................... 4, 5 

### Palmer v. Enserch Corp., 728 S.W.2d 431, 436 (Tex. App.

- Austin 3rd Dist.1987, writ re.f'd n.r.e.)
............................................ 5 

### Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997)
......... 4 

### Southwestern Blee. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002)
...... 4 

### Texas Beef Cattle Co. v. Green, 921 S.W. 2d 203, 212 (Tex. 1996)
........... 7 

### Tocher v. State, 517 S.W.2d 299, 301 (Tex. Cr. App.1975)
................. 5

v

### TEXAS RULES OF CIVIL PROCEDURE Tex. R. Civ. P. 166a(c)........................... .................. 3, 4 

### TEXAS CODE OF CRIMINAL PROCEDURE art. 22.10. ......................................................... 3 art. 

### 22.13(5)(A)(l). ............................................... 6, 7 

### Art. 22.13(a)(5)(A)
........................................... 2, 6, 7, 9 art. 22.13(b)
.................................................... 6, 10


### OTHER AUTHORITY 2 ROY W. McDONALD, TEXAS CIVIL PRACTICE 

### § 9:44, at 378 (1992)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

VISTATEMENT OF THE CASE Nature ofthe case. Appellee, the State ofTexas, ["State"] sued appellant to enforce the forfeiture ofa bail bond. (CR. 4). Appellant, ["Surety"] filed a general denial and asserted a affirmative defense provided by statute. (CR. 14-15). Course ofproceedings. The State moved for a summaryjudgment. (CR. 9- 13). The Surety filed a response and provided additional summaryjudgment proof. (CR. 16-23). Trial court disposition. The trial court granted the State's Motion for Summary Judgment and entered a final judgment on January 21, 2015. (CR. 24- 25).

Vil

### POINTS OF ERROR PRESENTED

POINT OF ERROR I THE TRIAL COURT ERRED BY GRANTING THE STATE'S MOTION FOR SUMMARY JUDGMENT

viiiTOM BENSON, Defendant-Surety, Appellant, 

### vs. NO. 03-15-00121-CR IN THE COURT OF APPEALS THIRD DISTRICT OF TEXAS AT AUSTIN, TEXAS

THE STATE OF TEXAS, Appellee.
APPELLANTS' BRIEF
STATEMENT OF FACTS 

### On November 29, 2013, Brian Roy Whipple, date ofbirth 1 

### XX/XX/XXXX
was released fromjail on a bail bond in the amount of$5,000.00 for a misdemeanor offense, executed by Tom Benson, as Surety. (CR. 4-5). On February 14, 2014, Mr. Whipple, the defendant and the principal on the bond executed by the Surety, was required to personally appear in the County Court at Law No. 7 ofTravis County. (CR. 4). He failed to appear as required. (CR. 4). Ajudgment nisi was properly issued. (CR. 4). On December 4, 2014, the State filed its Motion for Summary Judgment and summaryjudgment proofconsisting

1 Date ofBirth has been redacted pursuant to Tex. R. Appellant P. 9.

### ofthe bond and thejudgment nisi. (CR. 9-13). The State's motion requested a judgment for the penal sum ofthe bond $5,000.00 and court costs. After being properly served with citation, Surety answered2 

### with a general denial and asserted
an affirmative defense provided by art. 22.13(a)(5)(A) 3 • 

### (CR. 14-15). The Surety filed a response to the State's Motion again asserting the affirmative defense under art. 22.13(a)(5)(A) that the Defendant-Principal, Brian Roy Whipple was incarcerated in the Clark County Detention Center, Las Vegas, Nevada on June 29, 20144, 

### ajurisdiction within the United States, within 180 days from the date ofhis failure to appear, February 14, 2014. (CR. 16-20). The Surety provided additional summaryjudgment evidence which was attached to, and incorporated into, his response, in the form ofdocumentary evidence (CR. 18 

### ,-i,-i 11 and 12) and (CR. 21-23) and evidence provided byjudicial notice. (CR. 18 

### ,-i,-i 11 and 13). The State did not file any reply to the Surety's response or summaryjudgment evidence. (CR. 1-45). The trial court granted the State's Motion for Summary Judgment and entered a final judgment against the Surety for $5,000.00 plus costs ofcourt. (CR.

2 Surety filed and Original Answer and a First Amended Answer. 3 All statutory references are to Tex. Code Crim. Proc., unless otherwise noted.
4 The date ofbirth for Brian Whipple who is the principal on the bail bond and Brian Whipple who was incarcerated in the Clark County Detention Center, Las Vegas, Nevada are identical. 2

### 24-25). No postjudgment motions were filed. The Surety timely filed a notion of appeal. (CR. 26-28). This briefwill be timely iffiled on or before May 5, 2015.
SUMMARY OF THE ARGUMENT POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING THE STATE'S MOTION FOR SUMMARY JUDGMENT 

### 1) Because the Trial Court was presented an the affirmative defense and summaryjudgment evidence supporting every element ofthe affirmative defense the Trial Court erred in granting the State's motion.

ARGUMENT POINT OF ERROR 1: THE TRIAL COURT ERRED BY GRANTING THE STATE'S MOTION FOR SUMMARY JUDGMENT
Standard ofReview 

### Summaryjudgment proceedings in a bail bond forfeiture case are governed by the same rules as in civil cases. 

### Alvarez v. State, 861 S.W. 2d 878, 881 (Tex. Cr. App. 1992), 

### citing, art. 22.10 and Tex. R. Civ. P. 166a(c). The Court reviews the summaryjudgment de novo. 

### Joe v. Two Thirty Nine

3

### Joint Venture, 145 S.W.3d 150, 156 (Tex.2004). In this traditional summaryjudgment case, the issue on appeal is whether the State, as movant, met its summaryjudgment burden by establishing that no genuine issue ofmaterial fact exists and that the State is entitled to judgment as a matter oflaw. Tex. R. Civ. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden ofproofis on the State, and all doubts about the existence ofa genuine issue ofmaterial fact are resolved against it. Southwestern Elec. Power Co., 73 S.W.3d at 215; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); GreatAm. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). In deciding whether there is a material fact issue precluding summaryjudgment, all conflicts in the evidence should be disregarded and the evidence favorable to the Surety, the nonmovant, should be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the State's position will not be considered unless it is uncontroverted. GreatAm., supra, 391 S.W.2d at 47. When a defendant raises an affirmative defense in opposition to a motion for summaryjudgment, he must present sufficient summaryjudgment proof to raise a fact issue on each element ofhis affirmative defense. Nichols v. Smith, 507
4S.W.2d 518, 520 (Tex. 1974); 

### Palmer v. Enserch Corp., 728 S.W.2d 431, 436 (Tex. App. -Austin 3rd Dist.1987, 

### writ ref'd n.r.e.).


### Argument and Authority STATE PRESENTS 

### PRIMA FACIE CASE The State unquestionably presented a

### primafacie case in its motion for summaryjudgment. The State was required to produce evidence ofa bail bond and ajudgment nisi. 

### Alvarez, supra, 861S.W.2d at 880-881, 887, 889 

### citing, Deckard v. State, 615 S.W.2d 717, 718 (Tex. Cr. App. 1981); 

### Tocher v. State, 517 S.W.2d 299, 301 (Tex. Cr. App.1975); 

### Deckard v. State, 605 S.W.2d 918 (Tex. Cr. App.1980). It did so. (CR. 12-13). BURDEN SHIFTS TO SURETY The burden then shifted to the Surety to respond to the State's Motion and if
an affirmative defense is pied in his response it must be supported by summary judgment proofon every element ofthe affirmative defense. 

### Nichols, supra, 507 S.W.2d at 520; 

### Palmer, supra, 728 S.W.2d at 436. (CR. 14). In his response, the Surety alleges that the Defendant-Principal, Brian Roy Whipple was incarcerated in the Clark County Detention Center, Las Vegas, Nevada, on June 29, 2014, ajurisdiction within the United States, and it was 5

### within 180 days from the date ofhis failure to appear as required on February 14, 2014 and that these facts give rise to an affirmative defense provided by art. 22.13(a)(5)(A)(l). (CR. 17). AFFIRMATIVE DEFENSE PROVIDED BY 

### art. 22.13(a)(5) 

### The applicable language in Tex. Code Crim. Proc. art. 22.13 provides: "Art. 22.13. CAUSES WHICH WILL EXONERATE. (a) The following causes, and no other, will exonerate the defendant and his sureties, ifany, from liability upon the forfeiture taken:
..... 5. The incarceration ofthe principal in anyjurisdiction in the United States: (A) in the case ofa misdemeanor, at the time ofor not later than the 180th day after the date ofthe principal 's failure to appear in court; (B) in the case ofa felony, at the time ofor not later than the 270th day after the date ofthe principal 's failure to appear in court. (b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to pay costs ofcourt, any reasonable and necessary costs incurred by a county to
secure the return ofthe principal, and interest accrued on the bond amount from the date ofthejudgment nisi to the date ofthe principal 's incarceration. Although the statute does call it an affirmative defense it meets the definition ofone. An affirmative defense does not seek to defend by merely
6

### denying the plaintiff's claims, but rather seeks to establish "an independent reason why the plaintiffshould not recover." 

### Texas Bee/Cattle Co. v. Green, 921S.W.2d 203, 212 (Tex. 1996) 

### citing, 2 ROY W. McDONALD, TEXAS CIVIL PRACTICE § 9:44, at 378 (1992). The affirmative defense provided by art. 22.13(a)(5)(A)(l) raised in Surety's amended answer5 

### and the response consist ofthe following elements: (1) Incarceration ofprincipal on bond; (2) within anyjurisdiction in the United States; (3) principal charged with misdemeanor; ( 4) Incarceration within 180 days from the date the principal fail to appear in court. SURETY'S SUMMARY JUDGMENT PROOF 

### There is summaryjudgment proofin the record regarding each ofthe elements required by art. 22. l 3a)(5)(A): 1. Incarceration ofprincipal, Brian Roy Whipple. Supplied by Exhibit "l",page 3 (CR. 23) which is an incarceration verification letter from the SheriffofClark County Nevada stating that (1) that Brian Whipple DOB: was incarcerated in the Clark County Detention Center, Las Vegas, Nevada; and (2) on June 29, 2014. The date ofbirth for Brian

5 Surety requested the Trial Court to takejudicial notice ofhis First Amended Answer. (CR.18, 

### i/ 13 (6)). 7

### Whipple on the bail bond in this case is XX-XX-XXXX. (CR. 5 and 13). The date ofbirth specified in the incarceration verification letter and the date ofbirth specified on the bail bond in this case are the same. (CR. 5, 13 and 23). 2. Within anyjurisdiction in the United States. Supplied by requests forjudicial notice that: Clark County is located in the State ofNevada; the City ofLas Vegas, Nevada is located in Clark County; and both the City ofLas Vegas, Nevada and Clark County, Nevada arejurisdictions located within the United States. (CR. 18,**~** 

### 13 (1 

### )(2)(3)). 3. Principal, Brian Whipple is charged with a misdemeanor. Supplied by thejudgment nisi. (CR. 4 and 12). 4. Incarceration ofBrian Whipple within 180 days from the date the he failed to appear in court. The date he failed to appear in Court was February 14, 2014, and this is shown on thejudgment nisi. (CR. 4 and 12). The date ofhis incarceration was June 29, 2014. This is shown on Exhibit "1 ",page 3 (CR. 23). The Trial Court
was requested to takejudicial notice that the period oftime between February 14, 2014 and June 29, 2014 was less than 180 days. (CR. 18,**~** 

### 13 (5). Reviewing this summaryjudgment evidence, the genuine issue offact to be resolved by a trier offact is whether or not the Brian Whipple specified in the
8

### verification letter from the SheriffofClark County Nevada is the Brian Whipple that is the principal on the bond in this case. The date ofbirth, first and last name match, but there is no middle name specified. These matches create an inference supporting that the correct defendant is specified in the letter. The lack ofa middle name creates an inference ofdoubt that the correct defendant is specified in the letter. For the purposes ofthe summaryjudgment only, the inferences are resolved in the favor ofthe Surety. "Every reasonable inference from the evidence must be indulged in favor ofthe non-movants and any doubts resolved in their favor." 

### Alvarez, supra, 861 S.W. 2d at 881, citing, 

### Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Faced with these conflicting inferences, a material fact issue exists and the State's Motion should have been denied and the Trial Court erred by no doing so. RELIEF GRANTED BY TRIAL COURT 

### Thejudgment entered by the Trial Court was for the face amount ofthe bond $5,000.00 plus costs ofcourt. Art. 22. l 3(a)(5)(A) and the summary judgment proofpresented, effectively mitigates the legal consequences ofthe State's prima facie case for forfeiture. Where the conditions specified in art. 22.13(a)(5) are proved, the Surety is exonerated from liability ofthe forfeiture, except costs ofcourt, any reasonable and necessary costs incurred by a county to
9

### secure the return ofthe principal, and interest accrued on the bond amount from the date ofthejudgment nisi to the date ofthe principal 's incarceration. See art. 22.13(b). The Trial Court ofcourse will be free on remand to resolve the facts regarding the Surety's affirmative defense, and ifproved, the amount ofexpenses, costs and interest the State is due. CONCLUSION 

### Faced with the Surety's response6 

### and the summaryjudgment proofbefore the court, the only proper action was to deny the State's Motion. The case before this court is not to determine the correctness of, or application of, the Surety's affirmative defense, but the whether the Trial Court erred in granting the State's Motion in light ofthe surety's response and summaryjudgment evidence. At heart, this case is very simple. Granting a summaryjudgment despite a pled affirmative defense by the non-movant supported with summaryjudgment evidence is an error that caused the trial court to render an improperjudgment which should be reversed and remanded to the trial court. REQUEST FOR RELIEF 

### Appellant respectfully request that this Court reverse thejudgment ofthe

6 Surety did not move for summaryjudgment on his affirmative defense, leaving it to be resolved later. 10

### trial court, remand the cause to the trial court and grant such other and further reliefas to which he has shown himselfentitled.
Respectfully submitted, /s/ Tom Benson Tom Benson Texas State Bar No. 02170500 900 Jackson St., Suite 750 Dallas, Texas 75202-4461 (214) 742-9898 Telephone (214) 742-9879 Fax tomrbenson@gmail.com APPELLANT PRO SE

CERTIFICATE OF COMPLIANCE 

### I certify that this document was produced on a computer using WordPerfectX7 and contains approximately 2,089 words as determined by the computer software's word-count function, excluding the sections ofthe document listed in Texas Rules ofAppellate Procedure 9.4(i)(l). /s/ Tom Benson Tom Benson

11CERTIFICATE OF SERVICE 

### I certify that on May 6, 2015, a true and correct copy ofthe foregoing Appellants' Briefand Appendix as corrected was served on appellee's attorney, Tim Labadie, Assistant County Attorney by email to tim.labadie@traviscountytx.gov. 

### Isl Tom Benson Tom Benson

12

### APPELLANT'S APPENDIX
ITEM Trial Court's Judgment dated January 21, 2015 Tex. R. Civ. P. 166a(c) Tex. Code Crim. Proc. 22.10 Tex. Code Crim. Proc. 22.13 Bail Bond Letter from the SheriffofClark County Nevada State's Motion For Summary Judgment and proof Surety's First Amended Original Answer Surety's Summary Judgment Response and proof

13 BOOKMARK NO. 

### 1 2 3 4 

### 5 6 7 8 9

### ... NO. C-1-CV-14-002294 FILED f OR**RECO~D** (CRIMINAL NO. C-1-CR-13-501684). 

### ZOl5

### JAN 21 AH 9: Otl THE STATE OF TEXAS 

## v. BRIAN ROY WHIPPLE and TOM BENSON § 

## COifJ°tiTY COURT AT LAW § "'NA OcSEAUVo,., COUNTY CLERK § TRAVIS COUNTY, TEXAsNO. 7 § § § FINAL JUDGMENT TRAVIS COUNTY, TEXAS

On this day, the Court heard Plaintiff's Motion for Summary Judgment, considered the summary judgment evidence, which included a certified copy of the bond made on August 29, 2013, by Brian Roy Whipple, as Principal, and Tom Benson,
as Surety, payable to the State of Texas in the amount of $5,000.00 and a certified copy of the order forfeiting that bond. The Court finds from the evidence that this bond forfeited on February 14, 2014, when Brian Roy Whipple failed to appear in court in
cause number C-1-CR-13-501684 after his/her name was distinctly called at the courthouse door. 

### I llllll lllll lllll

# lllll 111111111111111111111111111111111 000939084 The Court therefore finds that the evidence establishes as a matter of law there
are no genuine issues of material fact as to any of the elements of the State's cause of action and grants Plaintiff's Motion for Summary Judgment. The Court also finds from its file that citation was served on Brian Roy Whipple, Principal-Defendant, and returned in accordance with Chapter 22 of the Code of Criminal Procedure. The Court further finds that Brian Roy Whipple failed to appear or answer within the time prescribed by law, and is in default. Further, the citation served, with the

321316 FINALJUDGMENT (SURETY BOND)- PAGE 1 Appellants BriefPage 014

# •
officer's return thereon, has been on file with the Clerk of the Court for at least ten days exclusive ofthe day offiling and the day ofjudgment. Therefore, the Courtorders that: 1. The State of Texas, through its County Attorney of Travis County, recover, jointly and severally, the sum of $5,000.00 from Brian Roy Whipple, as Principal-Defendant, and TomBenson, as Surety-Defendant; 2. Costs of suit are taxed against Brian Roy Whipple and Tom Benson, jointly and severally; 3. The State ofTexas, shall have all writs of execution and other process necessary to enforce thisjudgment; and 4. Thisjudgmentfinally disposes ofall claims and all parties and is appealable. SIGNED January 21, 2015.

CERTIFICATE OF LAST KNOWN ADDRESS I, Tim Labadie, attorney of record for the State of Texas, Plaintiff, hereby certify by my signature below that the last known address of Brian Roy Whipple is 1405 N Interstate 35, Round Rock, TX 78664-2924.

Assistant County Attorney

321316 FINALJUDGMENT (SURETY BOND)- PAGE 2 Appellants BriefPage 015RULE 166a(c). SUMMARY JUDGMENT (c) Motion and Proceedings Thereon. The motion for summaryjudgment shall state the specific grounds therefor. Except on leave ofcourt, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Except on leave ofcourt, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. Thejudgment sought shall be rendered forthwith if(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations ofthe parties, and authenticated or certified public records, ifany, on file at the time ofthe hearing, or filed thereafter and beforejudgment with permission ofthe court, show that, except as to the amount ofdamages, there is no genuine issue as to any material fact and the moving party is entitled tojudgment as a matter oflaw on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summaryjudgment may be based on uncontroverted testimonial evidence ofan interested witness, or ofan

Appellants BriefPage 016

### expert witness as to subject matter concerning which the trier offact must be guided solely by the opinion testimony ofexperts, ifthe evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

Appellants BriefPage 017

### TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 22.10


### Art. 22.10. SCIRE FACIAS DOCKET. When a forfeiture has been declared upon a bond, the court or clerk shall docket the case upon the scire facias or upon the civil docket, in the name ofthe State ofTexas, as plaintiff, and the principal and his sureties, ifany,
as defendants; and, except as otherwise provided by this chapter, the proceedings had therein shall be governed by the same rules governing other civil suits.

Appellants BriefPage 018

### TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 22.13
Art. 22.13. CAUSES WHICH WILL EXONERATE. (a) The following causes, and no other, will exonerate the defendant and his sureties, ifany, from liability upon the forfeiture taken: 1. That the bond is, for any cause, not a valid and binding undertaking in law. If

### it be valid and binding as to the principal, and one or more ofhis sureties, ifany, they shall not be exonerated from liability because ofits being invalid and not binding as to another surety or sureties, ifany. If

### it be invalid and not binding as to the principal, each ofthe sureties, ifany, shall be exonerated from liability. If

### it be valid and binding as to the principal, but not so as to the sureties, ifany, the principal shall not be exonerated, but the sureties, ifany, shall be. 2. The death ofthe principal before the forfeiture was taken. 3. The sickness ofthe 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, ifany, unless such principal appear before final judgment on the bond to
answer the accusation against him, or show sufficient cause for not so appearing.

Appellants BriefPage 019

### 4. Failure to present an indictment or information at the first term ofthe court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution has not been continued by order ofthe court. 5. The incarceration ofthe principal in anyjurisdiction in the United States: (A) in the case ofa misdemeanor, at the time ofor not later than the 180th day after the date ofthe principal 's failure to appear in court; or (B) in the case ofa felony, at the time ofor not later than the 270th day after the date ofthe principal 's failure to appear in court. (b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to pay costs ofcourt, any reasonable and necessary costs incurred by a county to
secure the return ofthe principal, and interest accrued on the bond amount from the date ofthejudgment nisi to the date ofthe principal 's incarceration.

Appellants BriefPage 020' )



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Appellants BriefPage 021

# ..NO. C-1-CV-14--002294 (CRIMINAL NO. C-1-CR-13-501684) Filed: 12/4/201412:42:36 PM Dana DeBeauvoir Travis County Clerk

C-1-CV-14-002294 Anita Durar THE STATE OF TEXAS § § § § § § COUN1YCOURTATLAW 

## v. N0.7 BRIAN ROY WHIPPLE and TOM BENSON TRAVIS COUNlY,TEXAS PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT TOTHE HONORABLE COURT: Plaintiff, the State of Texas, files this motion for summary judgment1 and in supportthereofwouldrespectfully show the Court the following: I. INTRODUCTION This is a bond forfeiture proceeding brought by the State of Texas pursuant to Tex. Code Crim. Pro. article 22.02 In order to be entitled to a forfeiture of a bond, Plaintiff must show (1) a valid bond executed by the surety; (2) that the defendant's
name was distinctly called at the courthouse door; and (3) the defendant failed to appear within a reasonable-time of that call. 

### Burns v. State, 861 S.W.2d 878, 888 

# (Tex. Crim. App. 1993). The 

### summary judgment evidence, which is comprised of the appearance bond executed by Defendants2 and the order forfeiting that bond,3 establishes each of these elements as a matter of law. The bond establishes the first element of the State's bond forfeiture suit and the Judgment Nisi is priina fade proof that of the second and third

2 3
321313 Brian Roy Whipple was served withcitation, has not made an appearance and is indefault A certified copy ofthe bond is attached hereto as Exhibit A. A certified copyofthe JudgmentNisi is attached hereto as Exhibit 8.

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iiiiiii !!!!!!!!elements. Burns v. State, 861 S.W.2d at 887. Thus, the court must presume that the Judgment Nisi is in accordance with the statutory requirements, unless it affirmatively appears otherwise. Id. IL THESUMMARY JUDGMENT EVIDENCE On August 29, 2013, Brian Roy Whipple, as Principal, and Tom Benson, as Surety, executed a bond payable to the State of Texas in the amount of $5,000.00.• This bond, which was a valid and binding undertaking in law, was conditioned on Brian Roy Whipple's personal appearance before the county court ofTravis County in cause no. C-1-CR-13-501684.5 OnFebruary 14, 2014, Brian Roy Whipple failed to appear when this case was called for triaJ.6 Thereafter, Brian Roy Whipple's name was called distinctly at the door ofthe courthouse and he was given a reasonable time after which to appear.7 Brian Roy Whipple, however, failed to appear and the bond made by Defendants was forfeited.& This evidence establishes as a matter of law there are no genuine issues of material fact as to any ofthe elements ofthe State's cause ofaction. IIL PRAYER The State of Texas, Plaintiff, respectfully requests that the Court grant this motion and renderjudgmentagainst Brian Roy Whipple, as Principal, andTom Benson,
asSurety,jointly and severally, inthe amount of$5,000.00 plus courtcosts.

4 See ExhibitA. 5 See ExhibitA. 6 See Exhibit B. 1 SeeExhibitB. 8 See ExhibitB. 321313 PlAJNTJpp'5 MonoN l'OR SUMMAR\'JU0CM1!flrt' (SuaEn BoNo)- PAGI!2 Appellants BriefPage 024Respectfully submitted, DAVID ESCAMILLA

### TRAVIS~CO**ATIO~** 

# c..-.9 •• By: Ti badie AssistantTravisCounty Attorney State Bar No. 11784853 P.O. Box 1(48 Austin, TeXa5 78767 (512) 854-9513 (512) 854-4808 (fax) NOTICE OFHEARING Plaintiff's Motion for Summary Judgment is set for hearing on January 21, 2015 at9:00a.m.

### ~-...C..

· badie CERTIFICATE OFSERVICE I hereby certify by my signature above that, on December 4, 2014 and in accordance with the Texas Rules of Civil Procedure 21 and 21a, a true and correctcopy ofthe foregoing was served by fax on: Mr. Tom Benson 900JacksonStreet, Suite 750 Dallas, Texas 75202 Fax
- 214-742-9879

321313 Pu.INTln'S ManON l'Oll SUMMARY}UDCM!NT(Suun BoND)- PACE 3 Appellants BriefPage 025

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C-1-CV-14.oo229' Guy Oeles9io COUN1Y COUltT AT LAW N0.7 TRAVIS COUNTY, TEXAS
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C-1-CV-14-002294 Ne. C 1 14**09229~** (CRIMINAL No. 1-CR-13-501684) Filed: 1/13/2015 5:33:22 PM Dana DeBeauvoir Travis County Clerk

C-1-CV-14-002294 Andrea Scott THE STATE OF TEXAS § § § § § § § IN THE COUNTY COURT
vs. BRIAN ROY WHIPPLE and TOM BENSON DEFENDA."IT'S AT LAW No. 7 TRAVIS COUNTY, TEXAS
FIRST AMENDED ORIGINAL ANSWER Defendant, Tom Benson, files his First Ame.nded Original Answer. A. General Denial 1. Defendant generally denies the allegations ofplaintiff. B. Affinnative Defense 2. Defendant is not liable to plaintifffor the amount ofthe bond pursuant to art. 22.13(a)(5)(A) TEX. CODE CRIM. PROC., because the Defendant-Principal, Brian Roy Whipple,
was incarcerated in the Clark County Detention Center. Las Vegas, Nevada, ajurisdiction within the United States, within 180 days from the date ofbis failure to appear as required on February 14, 2014. C. Prayer 3. For these reasons, defendant asked the Court renderjudgment that plaintiffbe awarded only, costs ofcourt, any reasonable and necessary costs incurred by a county to secure the return ofthe principal, and interest accrued on the bond amount from the date ofthejudgment nisi to the date ofthe principal 's incarceration as provided in art. 22.13(5)(b) TEX. CODECRIM. PROC., and award all other reliefto which defendant is entitled. Defendant's First Amended Original Answer

- Page l of2 Pages
Case # C-1-CV-14-002294 1111111111111111111111111111111111111111111111111111111 Appellants BriefPage 028

# •

Respectfully submitted,
Isl Tom Benson Tom Benson, Prose Defendant-Surety 900 Jackson Street, Suite 750 Dallas, Texas 75202 Tex.as Bar l.D. 02170500 (214) 742-9898 (214) 742-9879 FAX tomrbenson@gmail.com

CERTIFICATE OF SERVICE Icertify that I have on this 13th day ofJanuary, 2015, before S:OO P.M., caused atrue and correctcopy ofthe foregoing Defendant's First Amended Original Answer to be delivered to Tim Labadie, AssistantTravis County Attorneyby email to: tim.labadie@traviscountytx.gov.

IslTom Benson Tom Benson

Defendant's First Amended Original Answer-Page 2of2 Pages

Appellants BriefPage 029C-1-CV-14-002294 Ne. C 1 14 992194 (CRIMINAL No.**1-CR~13-501684)** Filed: 1/13/2015 5:42:49 PM Dana DeBeauvoir Travis County Clerk

C-1-CV-14-002294 Andrea Scott
THE STATE OF TEXAS § IN THE COUNTY COURT § vs. § § AT LAW No. 7 BRIAN ROY WHIPPLE and § TOM BENSON § § TR.AVIS COUNTY, TEXAS DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FORSUMMARY JUDGMENT AND

REQUESTSFORCOVRTTOTAKE JUDICIALNOTICE Defendant asks the court to deny pla.intifrs motion for summaryjudgment and to take Judicial Notice as requested herein. A. Introduction 1. Plaintiffis The State ofTexas; defendant is Tom Benson. 2. Plaintiffsued defendant for forfeiture ofabail bond in a criminal case. \ 3. Defendant answered asserting a general denial and an affirmative defense under art. 22.13(a)(5){A) that the Defendant-Principal, Brian Roy Whipple was incarcerated in the Clark County Detention Center, Las Vegas, Nevada, ajurisdiction within the United States, within 180 days from the date ofhis failure to appearas required on February 14, 2014. B. Facts 4. Plaintifffiled a motion for summaryjudgment based on its cause ofactfon for forfeiture ofa bail bond in a criminal case. S. Defendant attaches Exhibit 1to establish facts not apparent from the record and incorporates it byreference.
Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take Judicial Notice- Page I ofS Pages

Case # C-1-CV-14-002294 Appellants BriefPage 

### 0301111111111111111111111111111111111111111111111111111111 

# \\(:>C. Argument & Authorities 6. In deciding whether there is a disputed issue of material fact that precludes summary judgment,the courttakes as trueall evidence favorable tothenonmovant. LimestoneProds. Distrib., Inc. v. McNamara, 11 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The court must view the evidence in the light most favorable to the nonmovant and must indulge every reasonable inference and resolve a ti doubts in favorof the nonmovant. LimestoneProds., 71 S.W.3d at 311; Nixon, 690 S.W.2d at 549. 7. Thecourtshoulddenyplaintiffsmotionfor summaryjudgmentbecausedefendant's answer asserts the affirmative defense ofthe incarceration ofthe Defendant-Principal on the bond, Brian Roy Whipple in the Clark County Detention Center, Las Vegas, Nevada, ajurisdiction within the United States, within 180 days from the date ofhis failure to appear as required on February 14, 2014. This defense is provided by art. 22.13(5)(A)(I) TE.x. CODE CRIM. PROC. 8. The summary-judgment evidence attached to this response by defendant has created afact issue on each element ofhis affirmative defense. Bassett v. Am. Nat'l Bank, 145 S.W.3d 692, 696 (Tex. App.-Fort Worth 2004, no pet.}; see Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). 9. Defendant's affirmative defense consists ofthe following elements: (1) Incarceration of principal on bond; (2) within any jurisdiction in the United States; (3) principal charged with misdemeanor; (4) Incarceration within 180 days from the date the principal fail to appear in court. 1 O. The .smnmary-judgment evidence raises a fact issue on each element of the affirmative defense. Defendant's Response to Plaintiffs Motion for SummaryJudgment and Requests to take Judicial Notice

- Page 2 ofSPages

Appellants BriefPage 031 

# \<\D. Summary-Judgment Evidence 11. Defendant includes the summary·judgment evidence attached to this response and incorporates the evidence into this response byreference. 12. This response depends on the following documentary evidence: Documentary evidence. "Exhibit l", which is verified as authentic, establish the following facts: (1) thatBrianWhippleDOB: was incarcerated inthe ClarkCounty Detention Center, Las Vegas, Nevada; and (2) on June 29, 2014. 13. This response additionally depends on the following evidence provided byjudicial notice: ,f

udlclal Notice. Defendant requests the Court to takejudicial notice : (1) that Clark County is located in the State ofNevada; (2) that the Cjty ofLas Vegas, Nevada is located in Clark**County~** (3) that both the City ofLas Vegas, Nevada and ClarkCounty, Nevada arejurisdictions located within the United States; (4) that the defendant-principal Brian Roy Whipple failed to appear when required in court on February 14, 2014; (5) that the number ofdays between February 14, 2014 and June 29 1 2014 is less that 180 days; (6) ofthe Defendant's First Amended Original Answer filed in this case; and (7) that the principal Brian Roy Whipple's date ofbirth specified on the bond that is the subject matter ofthis suit is
. Defendant's Response to Plaintiff's Motion for SummaryJudgment and Requests to take Judicial Notice

- Page 3 of5 Pages

Appellants BriefPage 032 

# ,roE. Conclusion 14. Because theDefendant·Principal, Brian Roy Whipple was incarcerated in the Clark County Detention Center, Las Vegas, Nevada, ajurisdiction within the United States, on June 29, 2014, which within 180 days from the date ofhis failure to appear on February 14, 20l4, the State is not entitled to recover $5,000.00. Itis onlyentitled to recover costs ofcourt and interest accrued on the bond amount ofSS,000.00 from February 14, 2014 (the date the principal failed to appear) to June 29, 2014 (thedateoftheprincipal 'sincarceration). Hadthe State provided any summaryjudgment proofofany reasonable and necessarycosts incurredby acounty to secure the return oftheprincipal it would have been entitled to these costs also but there is no evidence before the Court ofthese costs and therefore the State is not entitled to them. F. Prayer 1 S. Forthesereasons, defendantasks the courtto denyplaintiff"s motion for summary judgment
oraJternariveJy, enter ajudgment only for costs ofcoun and jnterest accrued on the bond amount ofSS,000.00 from February 14, 2014 (the date the principal failed to appear) to June 29, 2014 (the date ofthe principal 'sincarceration).Respectfully submitted, IslTom Benson Tom Benson, Prose Defendant-Surety 900 Jackson Street, Suite 750 Dallas, Texas 75202 Texas Bar l.D. 02170500 (214) 742-9898 (214) 742-9879 FAX tomrbenson@gmail.com Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take Judicial Notice

- Page 4 of5 Pages

Appellants BriefPage 033 

# '°'CERTIFICATE OF SERVICE I certify that I have on this 13th day ofJanuary, 2015, before 5:00 P.M., caused a true and correctcopy of theforegoing Defendant'sResponse to State's Motion for SummaryJudgmentwith attachments to be delivered to Tim Labadie, Assistant Travis County Attorney by email to: tim.labadie@traviscountytx.gov. IslTom Benson Tom Benson

Defendant's Response to Plaintiff's Motion for SummaryJudgment and Requests to take Judicial Notice

- Page 5 ofSPages

Appellants BriefPage 034

### ~IBIT "I" (Three Pages)

No.**C·l-14~002294** (CRIMINAL No. 1-CR-13-501684) THE STATE OF TEXAS § JN THE COUNTY COURT § vs. § § ATLAWNo. 7 BRIAN ROY WHIPPLE and § TOM BENSON § § TRAVlS COUNTY, TEXAS BUSINIJSS RECQRD AFFIDAVJT Before me, the tDldersigned authority, personally appeared Tom**Ben.~on,** who being byme dulysworn, deposed as follows: "Myname is Tom Benson, 1am ofsound mind, capable ofmaking this affidavit, and personally acquainted with the facts herein stated: I am thecust.00.ian ofthe records ofTomBenson dlb/a Act Fast Bail Bonds ofFort Worth, Texas. Attached hereto is one page ofrecords from Tom Benson d/b/a Act Fast Bail Bonds ofFort Worth, Tex.as. The said one page ofrecords are keptbyTomBenson d/b/a Act Fast Bail Bonds ofFort Worth, Texas inthe regular course ofbusiness, and it wastheregular practice ofsaid entity for an employee orrepresentative with knowledge ofthe act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit infonnation thereofto be included in such record; and the record was made at or near the

### time or reasonably soon thereafter. The record attached hereto is the original or an exact duplicate ofthe original." 

# ..:.._._........,.om Benson SWORN TO AND SUBSCRIBED before me on the 6th dayofJanuary, 2015.



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### Mv~o~ntJ NOTARY PUB.Lie Business Record Affidavit •Page 1of 1Pages
Appellants BriefPage 035 

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CERTIFICATE OF SERVICE Icertify that I have on this 6th day ofJanuary. 2015, before 5:00 P.M., caused a true and correct copy ofthe foregoing Business Record Affidavit with one attached page to be delivered by fax to: (512) S84 1888 for Tim Labadie, Assistant Travis County 854-4808 Attorney.

Business Record Affidavit •Page 2of2 Pages
Appellants BriefPage 036 

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