C. S. Behrend D/B/A One Hour Bail Bonds of Comal v. State

behrend IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-389-CV C. S. BEHREND D/B/A/ ONE HOUR BAIL BONDS OF COMAL, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT AT LAW OF COMAL COUNTY NO. 93CV-113, HONORABLE FRED CLARK, JUDGE PRESIDING The appellant, C. S. Behrend d/b/a One Hour Bail Bonds of Comal, appeals from a default judgment in a bond forfeiture proceeding. Behrend's motion for new trial was overruled by operation of law. Behrend presents two points of error claiming that the trial court erred in rendering the default judgment because: (1) Behrend, the proper owner of the bail bond business, was not properly served; and (2) citation was defective and therefore insufficient to support the default judgment. We will affirm the default judgment. BACKGROUND On December 1, 1992, Ismael Garcia, the defendant in a criminal case, failed to appear before the County Court at Law of Comal County. The trial court ordered that his bail bond be forfeited, and issued a judgment nisi against Garcia as principal and "Johnny Chamberlain, d/b/a One Hour Bail Bonds of Comal" as surety on the bond. See Tex. Code Crim. Proc. Ann. arts. 22.01, .02 (West 1989). The clerk of the court sent citation by certified mail to "Johnny Chamberlain, d/b/a One Hour Bail Bonds of Comal," ordering him to appear and file an answer to the judgment nisi. On March 11, 1993, Chamberlain failed to appear at the hearing on the judgment nisi; Behrend, however, claiming to be the true owner of the bail bond company, appeared through counsel and attempted to file an answer. (1) The State objected to the answer as being untimely, and the court sustained the objection. On April 6, 1993, the court rendered a final default judgment against Ismael Garcia, principal, and "J. Chamberlain d/b/a One Hour Bail Bonds" as surety. On March 25, 1993, Behrend filed a pro se motion for new trial. He filed an amended motion for new trial through counsel on April 19, 1993 and received a hearing on his motion the same day. The motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c). Behrend appeals the default judgment. DISCUSSION In two points of error Behrend claims the trial court erred in failing to grant him a new trial because: (1) the judgment nisi and citation failed to name him as the true owner of One Hour Bail Bonds of Comal; and (2) service was improper, rendering the default judgment void. (2) The decision whether to grant a motion for new trial is addressed to the trial court's discretion and will be disturbed on appeal only if the court abused that discretion. Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987). To have a default judgment set aside and receive a new trial, a defendant must: (1) show that the defendant's failure to answer was not intentional or due to conscious indifference, but was due to mistake or accident; (2) set up a meritorious defense; and (3) show that granting a new trial will not work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). Liberally construed, Behrend's motion for new trial asserts that he failed to answer because the judgment nisi did not properly name him as the owner of the bond company and, as a result of this mistake, he was not notified of or served with process in the forfeiture proceeding. When an unincorporated business acts as the surety on a bail bond, citation in a bond forfeiture proceeding must name the proper owner of the business. Gilbert v. State, 623 S.W.2d 349, 352 (Tex. Crim. App. 1981). Furthermore, there are no presumptions in favor of valid service in an attack on a default judgment; absent strict compliance with the rules of civil procedure governing citation and service, the default judgment will be vacated. See Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985). If Behrend is the owner of the bond company, he should have been served with citation and notified of the forfeiture proceeding. Behrend, however, has failed to present us with a sufficient record to determine whether he is the owner of the bond company. See Tex. R. App. P. 50(d) (party seeking review must present sufficient record to show error requiring reversal). The movant for a new trial must support allegations in the motion with evidence. See Liepelt v. Oliveira, 818 S.W.2d 75, 77 (Tex. App.--Corpus Christi 1991, no writ). Behrend offered no evidence establishing his ownership of the bond company. A copy of the bail bond does not appear in the record, nor does the assumed-name certificate of One Hour Bail Bonds of Comal. (3) Behrend also failed to offer affidavits with his motion for new trial to support his contention. See id. (facts pleaded in the motion for new trial must be established by affidavits or other evidence). Finally, Behrend failed to testify that he was the true owner at the hearing on the motion for new trial and failed to object to the trial court's abrupt termination of the hearing. Absent any affirmative link establishing Behrend as the owner of the bond company, we cannot say that the trial court abused its discretion in refusing to grant Behrend's motion for new trial. Because Behrend has failed to preserve a record that shows he was entitled to service of process as the owner of the bond company, he cannot complain about defects in that service. Accordingly, we overrule both Behrend's points of error. CONCLUSION Because Behrend failed to present a record showing that he was entitled to service as the proper owner of One Hour Bail Bonds of Comal, we affirm the trial court's default judgment. Bea Ann Smith, Justice Before Justices Powers, Aboussie and B. A. Smith Affirmed Filed: November 16, 1994 Do Not Publish 1. It appears that Chamberlain may not be the owner of One Hour Bail Bonds. Behrend apparently wanted to come forward as the true owner of the bail bond company in order to raise a defense to the forfeiture: that Garcia had been arrested on the bond forfeiture and was in sheriff's custody. See Tex. Code Crim. Proc. Ann. art. 22.13 (West 1989). 2. Behrend does not specifically allege that the trial court erred in failing to grant him a new trial, but we understand this to be the substance of his argument. Even though the bond company was not a party to the judgment, see National Medical Enterprises v. Wedman, 676 S.W.2d 712, 714 (Tex. App.--El Paso 1984, no writ) ("d/b/a" designation does not make the entity a party to the lawsuit or judgment, but merely indicates name under which defendant is alleged to operate), Behrend attempted to establish that he was the actual surety by filing a motion for new trial. See Garcia v. Arbor Green Owners Ass'n, 838 S.W.2d 800, 803 n.2 (Tex. App.--Houston [1st Dist.] 1992, writ denied) (if extrinsic evidence is necessary to challenge default judgment, motion for new trial is an appropriate remedy). Consequently, we consider Behrend's appeal as assigning error to the trial court's failure to grant this motion. 3. Appellant attached a copy of the assumed name certificate to his brief. Items attached to briefs or motions but not introduced in the trial court are not considered part of the record. Carlisle v. Phillip Morris, Inc., 805 S.W.2d 498, 501 (Tex. App.--Austin 1991, writ denied); see also University of Texas at Austin v. Hinton, 822 S.W.2d 197, 202 (Tex. App.--Austin 1991, no writ) (holding that missing documents are presumed to sustain trial court ruling).