Surety Felix Michael Kubosh v. State

Opinion issued August 31, 2006 In The Court of Appeals For The First District of Texas NOS. 01-05-00401-CV 01-05-00402-CV FELIX MICHAEL KUBOSH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause Nos. 964604-A & 964605-A MEMORANDUM OPINION Appellant, Felix Michael Kubosh, the surety on two bail bonds executed for Chaderick Duane Moore, challenges the trial court’s final judgment entered in favor of the State in a bond forfeiture proceeding. In two points of error, Kubosh contends that the trial court erred in entering a judgment in favor of the State because the evidence was insufficient and because the State moved for a default judgment against Kubosh, even though he had filed an answer and appeared. We affirm. Factual and Procedural Background Kubosh, a licensed bail bondsman, and Sonja Salinas executed two bail bonds in the amount of $50,000 each, as sureties on the bonds for Moore, to secure his release from custody pending resolution of the charges. Moore failed to appear and answer the charge against him, and the State moved for bond forfeiture. The trial court entered two judgments of forfeiture (“judgments nisi”), declaring the bonds forfeited and ordering that the State recover from Moore, as principal on the bonds, and Kubosh and Salinas, as sureties on the bonds, the sum of $50,000 for each bond. The judgments nisi further ordered that citation issue to the sureties and “show cause why [the] judgment of forfeiture should not be made final.” Kubosh filed a general denial and affirmatively pleaded the defense of equitable remittitur. Prior to trial, Kubosh filed a motion for continuance, stating that he had expended a significant amount of time and resources in searching for Moore. Kubosh requested a 90-day reset of the trial because he was “close to apprehending Moore.” The trial court orally granted Kubosh’s motions for continuance on both bonds at a scire facias hearing, and reset the trial. Kubosh also filed motions for remittitur on both bonds, requesting that the trial court “remit to the surety one-half ($25,000) of the bond on this case.” At trial, the reporter’s record indicates that the court reporter was instructed to put the hearing on the record after the hearing had begun. The record begins with Kubosh’s trial counsel objecting to the State’s motion to dismiss its case against co-surety Salinas. Kubosh asked the trial court not to grant the dismissal against Salinas and further requested that the court grant him a motion for continuance for one day so that Salinas could be properly issued a subpoena. In response, the State explained that it was unable to get service on Salinas and then asked the trial court to grant a “default judgment against Mr. Kubosh.” The trial court denied Kubosh’s oral motion to deny the default judgment, denied his motion for continuance, and overruled his objection to the entry of default judgment. The trial court then signed the final judgments of forfeiture, declaring the bonds forfeited against Kubosh, and dismissed the State’s cases against Salinas because of a failure to secure service of process. This Court granted Kubosh’s opposed motions for “Correction of Inaccuracies in the Reporter’s Record” and ordered that a hearing be held to resolve the alleged inaccuracies in the court reporter’s record. At the hearing, Kubosh’s trial counsel called him to the stand. Kubosh testified that, at the scire facias hearing, the prosecutor quickly approached the bench before the judge had the chance to call the case to trial. He further stated that the prosecutor never asked the Court to take judicial notice of the judgments nisi or the bail bonds. Kubosh testified that, in his opinion, the only thing missing from the record was that the prosecutor approached the bench and asked for a default judgment prior to the docket being called. On direct examination by the State, the prosecutor gave his recollection of what occurred at the hearing: The Judge called the case for trial. He asked if the parties were ready. State said they were. Mr. Kubosh said he was. I, at that time, then moved the Court to take judicial notice of the bond and judgment Nisi and approached the Court with the two final judgments. On cross-examination, Kubosh asked the prosecutor if he made a correct statement when he asked the trial court for a default judgment against Kubosh. The prosecutor replied that he misspoke when he asked for a default judgment gainst Kubosh and clarified that the State was requesting a default judgment against Salinas, the second surety. On re-direct and re-cross, the prosecutor clarified that the State was dismissing the second surety and not seeking a default judgment. At the conclusion of the hearing, the trial court stated that “[t]he paperwork, the service, the judgment Nisi, the bond forfeiture, the notice had already been properly taken care of. State moved for judgment, and I granted the same on that.” The court went on to state: “I think--I do think to this day that [the prosecutor] did misspeak when he asked for a default judgment.” The trial court concluded by stating that it found that the case was properly called and the State was and is entitled to judgment on the bond forfeiture. Discussion In two points of error, Kubosh argues that the trial court erred in entering a judgment in favor of the State because the evidence was insufficient and because the State moved for a default judgment against Kubosh even though he had filed an answer and appeared. In a bail bond forfeiture, the State has the burden of proof. Deckard v. State, 605 S.W.2d 918, 921 (Tex. Crim. App. 1980). “The essential elements of the State’s cause of action in a bond forfeiture proceeding are the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi.” Alvarez v. State, 861 S.W.2d 878, 880–81 (Tex. Crim. App. 1992). While the State is generally required to present and offer both the bond and judgment nisi into evidence, the Court of Criminal Appeals has held that a trial court may take judicial notice of the judgment nisi. Hokr v. State, 545 S.W.2d 463, 466 (Tex. Crim. App. 1977). Here, while the record does not reflect whether or not the State asked the trial court to take judicial notice of the bonds and judgments nisi, the supplemental reporter’s record reflects that the trial court took judicial notice of the bonds and judgments nisi. Further, a trial court may take judicial notice of its own file at any stage of proceedings and is presumed to have done so with or without a request from a party. Bob Smith Bail Bonds, Sur. v. State, 963 S.W.2d 555, 556 (Tex. App.—Fort Worth 1998, no pet.) (disagreeing with State’s concession that failure of the trial court to take judicial notice of judgment nisi on the record amounted to insufficiency of evidence). In McCluskey v. State, 64 S.W.3d 621 (Tex. App.—Houston [1st Dist.] 2001, no pet.), this Court considered a similar situation. In McCluskey, the appellant argued that there was insufficient evidence to support the judgment because there was no hearing held and, thus, no evidence presented to the court by the State. Id. at 623. In overruling the point of error, we held that there was sufficient evidence to uphold the judgment because the judgment nisi and bail bond were contained in the trial court’s records and the final judgment recited that the trial court had considered those documents. Id. at 624 & n.3, (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992)) (holding that, because there was neither a reporter’s record nor findings of fact and where the judgment recites that the trial court considered “evidence,” we presume the trial court admitted two documents into evidence.); see Mackintosh v. State, 845 S.W.2d 361, 364 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (holding that in a bond forfeiture appeal, when there is no reporter’s record, and the appellate record contains no court reporter’s certificate that no evidence was admitted or that no reporter’s record was made, the court will presume the evidence supports the judgment). Here, the copies of the bonds and the judgments nisi are contained in the appellate records and both final judgments stated that the trial court considered the pleadings and evidence. Therefore, we hold that the trial court did not err in finding sufficient evidence to grant the final judgment of forfeiture. Accordingly, we overrule Kubosh’s first point of error. Moreover, we hold that Kubosh’s second point of error, in which he contends that the trial court erred in granting the State’s default judgment, to be without merit. Based upon the supplemental reporter’s record and the trial court’s recollection of what occurred at the scire facias hearing, it is clear that the prosecutor misspoke when he requested a default judgment against Kubosh. Neither the clerk’s record nor the reporter’s record supports Kubosh’s contention that the State intended to seek a default judgment against him. Accordingly, we overrule Kubosh’s second point of error. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Jennings, Hanks, and Higley.