Felix Michael Kubosh v. State of Texas

Opinion issued March 9, 2006 In The Court of Appeals For The First District of Texas NO. 01-05-00357-CV __________ FELIX MICHAEL KUBOSH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 971453-A MEMORANDUM OPINION Appellant, Felix Michael Kubosh, the surety on a bail bond executed for Mufautau Olajide Fadahunsi, challenges the trial court’s final judgment entered in favor of the State in a bond forfeiture proceeding. In his sole point of error, Kubosh contends that the trial court erred in entering a judgment in favor of the State because the evidence was insufficient. We affirm. Factual and Procedural Background A Harris County Grand Jury issued a true bill of indictment, accusing Mufautau of the felony offense of money laundering. To secure his release pending disposition of the case, Mufautau executed a $100,000 bail bond, with Kubosh being the surety and Mufautau’s wife, Monsurat, being the co-surety. After Mufautau failed to appear in court, the trial court entered a “judgment of forfeiture (judgment nisi),” declaring the bond forfeited and ordering that the State recover from Mufautau, as principal on the bond, and Kubosh and Monsurat, as sureties on the bond, the sum of $100,000. The judgment 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 Mufautau. Kubosh requested a 90-day reset of the trial because he was “close to apprehending Mufautau.” The trial court granted Kubosh’s motion for continuance, and reset the trial. Kubosh also filed a motion for remittitur, requesting that the trial court “remit to the surety one-half ($50,000) of the bond on this case.” In both the motion for continuance and motion for remittitur, Kubosh identified himself as the “surety” on the bond and attached an exhibit that stated that “[Kubosh Bail Bonding] staff went to the jail to visit [Mufautau] to get him to sign paperwork and talk to him about his case,” that “$100,000 bond was posted for [Mufautau],” and that “[Kubosh Bail Bonding] collected $5,500 down as payment towards the bond fee of $9,500 total.” At trial, the State asked the trial court to take judicial notice of the bond and the judgment nisi. The State then rested “as to [the] evidence.” The trial court stated that it would “take notice of both the bond and the judgment as they are part of the Court’s file.” Kubosh then stated As far as the bond is concerned, while, obviously, I have no objection to the Court taking judicial notice for—of documents filed in their own file, I do object to the bond being admitted into evidence for this case; and furthermore, I would object to the bond as it is replete with hearsay. And everything that is in here, while the Court may take judicial notice that the bond has been filed and it’s part of the Court’s file, I object to the Court admitting into evidence any of the stuff that’s on the bond as being true and correct. And furthermore, I would object to the bond. It’s signed and dated on “1-5-0420”; and I would object to the bond as not being a viable bond because of the mistyped date under Signed and Dated right above [Mufautau’s] signature. Those are my objections, Your Honor. The trial court then called Kubosh to the bench and asked him to specifically point to the portion of the bond containing the objectionable information. After additional discussion concerning Kubosh’s objections, the trial court then stated The Court is going to take absolute notice that you made a bond in the case or we wouldn’t be here today. . . . You made this bond on January 5th of 2004; and the Court is absolutely aware of that. The Court is the one that called the docket on the day he didn’t appear, and the Court is aware that he didn’t answer. So, the Court is going to absolutely take judicial knowledge of that; and the record is going to reflect that. The trial court then asked Kubosh if there was anything else, and Kubosh stated, “that’s the extent of my objection.” At the conclusion of the trial, the trial court denied Kubosh’s motion for remittitur and granted the State’s motion for judgment in the amount of $100,000. The trial court subsequently entered a final judgment of forfeiture stating that “after considering the pleadings and evidence herein, including the bail bond and the Judgment of Forfeiture on file in this cause,” it found that no sufficient cause was shown for Mufautau’s failure to appear. Discussion In his sole issue, Kubosh argues that there is insufficient evidence to support the judgment because the State “never introduced the bond into evidence.” The State responds that the trial court did not err in taking judicial notice of the bond because appellant did not plead any affirmative defenses and did not show any reason why a criminal bail bond should be treated differently than any other court record. 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. 1993). 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, the record reflects that, upon the State’s request, the trial court took judicial notice of both the judgment nisi and the bond. While Kubosh had “no objection to the Court taking judicial notice . . . of documents filed in [its] own file,” he did assert various objections, including hearsay and an error in one of the dates on the bond. Thus, Kubosh did not specifically object to the trial court taking judicial notice of the bond itself, but instead made objections concerning the contents of the bond. The trial court considered those objections and overruled them. By conceding that the trial court could take judicial notice of its records, including the bond, Kubosh waived any complaint in that regard. Tex. R. App. P. 33.1. Furthermore, Kubosh does not contend on appeal that the trial court erred in overruling his specific objections concerning the alleged hearsay and clerical errors in the bond. Thus, we do not review the trial court’s rulings on those objections. Appellant cites Bob Smith Bail Bonds v. State, 963 S.W.2d 555, 556 (Tex. App.—Fort Worth 1998, no pet.), and Hernden v. State, 865 S.W.2d 521, 523 (Tex. App.—San Antonio 1993, no pet.), in support of his argument that there was insufficient evidence to support the trial court’s judgment. Both of these cases are substantively distinguishable. In Bob Smith Bail Bonds, it does not appear that a copy of the bond appeared independently in the record and there is no indication that the trial court took judicial notice of the bond and considered the bond as evidence in rendering its judgment. 963 S.W.2d at 556. Similarly, in Hernden, the court specifically noted that the State did not ask, and the trial court did not offer, to take judicial notice of the bond. 865 S.W.2d at 522–23. Here, not only did a copy of the bond appear independently in the record, but the State asked, and the trial court agreed to, take judicial notice of the bond. Furthermore, Kubosh agreed that the trial court could take judicial notice that the bond had been filed and was contained in the court’s file. Accordingly, we hold that there is sufficient evidence to support the trial court’s judgment. We overrule appellant’s sole issue. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Chief Justice Radack and Justices Jennings and Alcala.