Safety National Casualty Corporation (Agent: Shaun Barkley Burns) v. State

Affirmed and Memorandum Opinion filed June 30, 2009 Affirmed and Memorandum Opinion filed June 30, 2009. In The Fourteenth Court of Appeals _______________ NO. 14-08-00659-CR _______________ SAFETY NATIONAL CASUALTY CORPORATION (AGENT: SHAUN BARKLEY BURNS), Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1071518-A M E M O R A N D U M   O P I N I O N In this bond forfeiture case, the surety appeals the trial court=s judgments in favor of the State on the grounds that (a) the principal was not timely indicted, (b) the principal was placed on deferred adjudication, and (c) the trial court revoked the principal=s three bonds prior to his hearing date. We affirm. I. Background In June 2006, Mehdi Ganjizadeh, as principal, and Safety National Casualty Corporation (ASafety National@),[1] as surety, executed a bail bond in the amount of $50,000 for the felony charge of aggravated assault with a deadly weapon (the Afirst bond@).[2] Ganjizadeh was subsequently released from jail. In September 2006, Ganjizadeh and Safety National executed two more bail bonds, each for $50,000.00, for two felony counts of possession of child pornography (the Asecond bonds@).[3] Ganjizadeh was again released from jail after the bonds were executed. In January 2007, Ganjizadeh was indicted in all three cases, but failed to appear in the trial court on February 6, 2007. The trial court entered judgments nisi in each of the three cases, stating that Ganjizadeh had failed to appear and ordering the bonds forfeited unless good cause was shown for his absence. After a bench trial in April 2008, the trial court entered final forfeiture judgments in all three cases. The trial court entered findings of fact and conclusions of law after a hearing on June 5, 2008. As is relevant here, the trial court found: 9. On January 3, 2007, Medhi [sic] Ganjizadeh was indicted by a Harris County Grand Jury in all three cases. 10. The Foremen of the Grand Juries whose terms were in session from the time of the Defendant=s admission to bail until the time of the Defendant=s indictments filed Motions stating that they did not dispose of all their pending cases and moved to refer all of the undisposed cases to the next succeeding Grand Juries to be impaneled. The Presiding Judges of the Grand Juries whose terms were in session from the time of the Defendant=s admission to bail until the time of the Defendant=s indictments entered Orders continuing the pending Grand Jury cases to the next succeeding Grand Juries to be impaneled. The Orders do not mention any cases specifically. Harris County Grand Juries do not include a list of the cases that are continued to the next term of the grand jury. 11. In [the child pornography causes], the trial court entered an order stating that Mr. Ganjizadeh was placed on deferred adjudication and was therefore directed to provide a specimen of his DNA. The trial [judge] stated that she had checked the incorrect box and intended to check the box indicating Mr. Ganjizadeh had to submit his DNA because he had been indicted instead of checking the box indicating he had to submit his DNA because he had been placed on deferred adjudication. 12. On January 29, 2007, the trial court signed a note to the Clerk of Court which is contained in the trial court=s file revoking Mr. Ganjizadeh=s bond, setting the new bond amount at Ano bond@ and issuing a warrant for his arrest. The defendant was never arrested on these warrants. 13. The defendant, Mr. Ganjizadeh, failed to appear in the 184th District Court on February 6, 2007, and the Court forfeited his bond in each of the three criminal cases. Based on these findings, the trial court concluded as follows: 3. The Surety failed in its attempt to establish that the grand juries and courts had failed to continue the prosecution of the Defendant by Order of the Courts following no indictment or information at the first term of the court which was held after the principal had been admitted to bail as required by Article 22.13(a)(4) of the Code of Criminal Procedure. The Surety=s evidence was insufficient. The State provided rebuttal evidence establishing that the pending criminal cases had been properly continued by Order of the Courts pursuant to the practices of the Harris County District Court Grand Juries. . . . 4. The Surety=s claim of exoneration based on the Defendant having received deferred adjudication in [the child pornography causes] failed for lack of evidence. No evidence of a plea by the Defendant or Order of Deferred Adjudication of Guilt in any of the . . . cases was introduced by the Surety. The Surety=s introduction of an Order to Submit DNA in [these causes] based on a check mark in a box indicating the defendant had been placed on deferred adjudication is insufficient to establish the Defendant had ever entered a plea and been granted deferred adjudication. . . . Further, the trial [judge] remembered that the Defendant never pleaded guilty nor was he granted deferred adjudication in any of his criminal cases. 5. The Surety=s claim that the Court=s revoking the Defendant=s bonds prior to the bond forfeitures resulted in no bond to forfeit, fails as a matter of law. The Court revoked the Defendant=s bond under Article 17.44(c) of the Code of Criminal Procedure because the Defendant had removed the ordered electronic monitor. The Court was attempting to get the Defendant back into Court since the Defendant had violated a condition of his bond; however, the Defendant was never rearrested prior to the date of the bond forfeitures. . . . [T]he surety failed to prove that the Defendant=s criminal cases were dismissed or that the Defendant had been acquitted or convicted or that the defendant received deferred adjudication or [was] placed on community supervision. Accordingly, the bonds in these three cases were still valid after this Court . . . revoked the bonds due to the Defendant violating a condition of his bond by removing his court ordered electronic monitor. . . . Safety National=s motion for new trial challenging the sufficiency of the evidence was denied, and this appeal timely ensued. II. Issues Presented In its first issue, Safety National asserts that it is exonerated from the first bond because the State failed to timely indict Ganjizadeh as required by article 22.13 of the Texas Code of Criminal Procedure. Safety National contends in its second issue that it is not liable for the second bonds because it demonstrated that Ganjizadeh had been placed on deferred adjudication for the underlying charges. Finally, in its third issue, Safety National argues that none of the bonds were valid and binding because they were revoked by the trial court prior to their forfeiture. These issues require us to both (a) review the sufficiency of the evidence to support the trial court=s findings and (b) determine if the trial court erred in reaching its conclusions of law. III. Analysis A. Standard of Review We review the trial court=s conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App.CHouston [14th Dist.] 2000, no pet.). When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.CHouston [14th Dist.] 1996, no writ). Incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id. In reviewing a trial court=s findings of fact for legal and factual sufficiency of the evidence, we apply the same standards we apply in reviewing the evidence supporting a jury=s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When the appellate record contains a reporter=s record, as it does in this case, findings of fact are not conclusive on appeal if a contrary fact is established as a matter of law or if there is no evidence to support the finding. See Material P=ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.CHouston [14th Dist.] 2003, pet denied). When conducting a legal sufficiency review, we credit evidence supporting the judgment if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We may sustain a legal sufficiency, or no‑evidence, point if the record reveals one of the following: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence established conclusively the opposite of the vital fact. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). If more than a scintilla of evidence exists, it is legally sufficient. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact=s existence. Id. at 782B83. When conducting a factual sufficiency review, we consider all of the evidence to determine if the finding is so weak or if the evidence to the contrary is so overwhelming that it should be set aside and a new trial ordered. Burlington N. & Santa Fe Ry. v. S. Plains Switching, Ltd., 174 S.W.3d 348, 354 (Tex. App.CFort Worth 2005, pet. denied); see also Allegheny Cas. Co. v. State, 163 S.W.3d 220, 223B24 (Tex. App.CEl Paso 2005, no pet.). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Allegheny Cas. Co., 163 S.W.3d at 224; see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). An appellate court must also clearly state why the trial court=s finding is factually insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) (per curiam). B. Bond Forfeiture Proceedings In a bail bond forfeiture proceeding, the State bears the burden of proof. Kubosh v. State, 241 S.W.3d 60, 63 (Tex. Crim. App. 2007). The elements of the State=s cause are the bond and the judicial declaration of the bond forfeiture, i.e., the judgment nisi. Id. Once forfeiture liability has been established, however, the defendant and his sureties may be exonerated if they establish that one of the provisions of Texas Code of Criminal Procedure article 22.13 applies. See Tex. Code Crim. Proc. Ann. art. 22.13(a) (Vernon 2009). Safety National relies on the following provisions of this article: (a) The following causes, and no other, will exonerate the defendant and his sureties, if any, 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 of his sureties, if any, they shall not be exonerated from liability because of its being invalid and not binding as to another surety or sureties, if any. If it be invalid and not binding as to the principal, each of the sureties, if any, shall be exonerated from liability. If it be valid and binding as to the principal, but not so as to the sureties, if any, the principal shall not be exonerated, but the sureties, if any, shall be. . . . 4. Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case [sic] where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court. Id. C. Time of Indictment In its first issue, Safety National argues that because Ganjizadeh was not indicted on the aggravated assault charges during the first term after being admitted to bond, it is exonerated from liability on the aggravated assault bond. We construe this issue as a challenge to the trial court=s factual finding 10 and legal conclusion 3 supra and address both issues in turn. The terms of Harris County district courts giving preference to criminal proceedings begin on the first Mondays in February, May, August, and November. See, e.g., Tex. Gov=t Code Ann. ' 24.269 (Vernon 2004) (176th District Court in Harris County=s terms begin on first Mondays in February, May, August, November); id. ' 24.364 (Vernon 2004) (same for 184th District Court). Ganjizadeh was released on the aggravated assault bond on June 9, 2006. Thus, the first term of the court held after he had been admitted to bail on the aggravated assault charges began on the first Monday in August 2006 and continued until the first Monday in November 2006, when a new term began. Ganjizadeh was not indicted until January 2007, which was the second term after he was admitted to bail. But a surety is only exonerated from liability under article 22.13(a)(4) if Athe prosecution has not been continued by order of the court.@ Tex. Code Crim. Proc. Ann. art. 22.13(a)(4). According to the trial court=s findings, the court ordered appellant=s prosecution continued until the next term. We thus first consider whether legally and factually sufficient evidence supports this finding. Safety National asserts that the orders contained in our record are the legal equivalent of Ano evidence@ because they neither mention Ganjizadeh by name nor list the specific cases that were pending and had not been reached. But the trial court took judicial notice that Harris County grand juries do not include this information in their orders continuing causes for prosecution, and Safety National has not challenged the trial court=s authority to take judicial notice of this practice. Copies of orders continuing undisposed cases on the grand juries= dockets were admitted into evidence during the trial. In addition, the trial court took judicial notice of Ganjizadeh=s criminal files. Appellant directs us to no evidence indicating this case was not pending on the grand jury=s docket at the time the orders continuing all prosecutions was entered. Thus the record supports the trial court=s finding. We therefore conclude that the evidence is legally and factually sufficient to support the trial court=s finding. Turning to the trial court=s conclusion that Safety National did not establish the State had continued appellant=s prosecution, we note that article 22.13 does not require the inclusion of a defendant=s name or cause number on an order continuing his prosecution.[4] Tex. Code Crim. Proc. Ann. art. 22.13(a)(4). Indeed, as noted supra, the trial court took judicial notice that grand juries in Harris County do not include this information in orders continuing prosecution. Reviewing this issue de novo, we conclude that the trial court properly determined Safety National was not exonerated from liability under this article. We therefore overrule Safety National=s first issue. D. Deferred Adjudication Safety National asserts in its second issue that it provided evidence that Ganjizadeh was placed on deferred adjudication in the child pornography causes; thus it contends the bail bonds associated with these charges were no longer valid and binding. This issue requires consideration of the trial court=s factual finding 11 and legal conclusion 4, detailed above. When a defendant appears and is granted deferred adjudication, a surety has no further liability on a bond. Reed v. State, 702 S.W.2d 738, 741 (Tex. App.CSan Antonio 1985, no pet.). Here, however, appellant failed to conclusively establish that Ganjizadeh appeared and was granted deferred adjudication. Safety National relies solely on two forms signed by the trial judge ordering Ganjizadeh to provide a DNA sample to law enforcement officials. On these forms, a handwritten checkmark was placed in a box next to an option that states, AYou have been placed on deferred adjudication for one of the offenses listed below.@ Although these forms may be some evidence that Ganjizadeh was placed on deferred adjudication in these cases, the trial judge stated on the record that she had checked the wrong boxes on these forms. She stated she had intended to check the box next to the statement, AYou have been indicted or waived indictment and released on bond for one of the felony offenses listed below.@ Under these circumstances, we conclude that there is legally and factually sufficient evidence to support the trial court=s finding that Ganjizadeh had not been placed on deferred adjudication. Thus, the trial court did not err in refusing to exonerate Safety National=s liability on the second bonds on this basis. We overrule its second issue. E. ARevocation@ of Bonds In its third issue, Safety National asserts that the trial court ordered all three bonds revoked prior to Ganjizadeh=s hearing. Appellant claims it cannot be liable on these bonds because the trial court=s revocation order Avoided or nullified@ the bonds. We construe this issue as a challenge to the trial court=s legal conclusion 5, quoted above. The Aorder@ to which Safety National refers is a signed note handwritten by the trial judge on a printed copy of an email from a Harris County Pretrial Services employee. In the email, the employee stated that Ganjizadeh was Aordered to a curfew, electronic monitoring, random weekly urinalysis, no alcohol and to report in person once a week.@ The employee informed the trial judge that the defendant left his home two days before the date of the email and had not returned. According to the email, Ganjizadeh=s girlfriend called Harris County Pretrial Services and reported that Ganjizadeh had left the country. The trial judge handwrote on the email: AClerk B pls. revoke bonds & set at no bond. Pls. issue warrants.@ Safety National has provided no authority that a surety is discharged from liability under these circumstances.[5] The purpose of a bail bond is to ensure that a principal appears to answer the charges against him. See Harris v. State, 891 S.W.2d 730, 731 (Tex. App.CSan Antonio 1994, pet. denied). Indeed, the Texas Code of Criminal Procedure contemplates that principals and sureties will remain liable on appearance bonds until disposition of a criminal case. See Tex. Code Crim. Proc. Ann. art. 17.09 ' 1 (Vernon Supp. 2008) (stating that a personal appearance bond Ashall be valid and binding upon the defendant and his sureties@ for his personal appearance and Afor any and all subsequent proceedings had relative to the charge@), ' 3 (allowing judge or magistrate to order accused who has been released on appearance bond rearrested under certain circumstances; only when new bond is given is defendant released from custody); see also id. art. 17.16(a) (Vernon 2005) (providing that a surety may relieve itself of liability before forfeiture by surrendering the accused or averring that the accused is in custody elsewhere); cf. id. art. 17.40(b) ' 4 (Vernon Supp. 2008) (AOnce the defendant is placed in custody, the revocation of the defendant=s bond discharges the sureties on the bond, if any, from future liability on the bond.@ (emphasis added));[6] id. art. 44.04(f) (Vernon 2006) (providing that a defendant and his sureties are not released from liability on an appeal bond until the defendant Ais placed in the custody of the sheriff@). Further, issuance of an arrest warrant, without the principal actually being rearrested and released on another bond, does not nullify a prior appearance bond obligation. Fly v. State, 550 S.W.2d 684, 685 (Tex. Crim. App. 1977). Nothing in our record indicates Ganjizadeh was rearrested and released on any other bond. There is likewise no indication that the trial court disposed of the causes against him for which Safety National agreed to be his surety. We therefore conclude that Safety National has failed to establish that the bonds at issue in this case were not Avalid and binding undertaking[s] in law.@ Tex. Code Crim. Proc. Ann. art. 22.13(a)(1). We overrule its third issue. IV. Conclusion Having overruled Safety National=s three issues, we affirm the trial court=s final judgments of forfeiture. /s/ Eva M. Guzman Justice Panel consists of Justices Yates, Guzman, and Sullivan. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Shaun Barkley Burns executed all of the bonds on behalf of Safety National. [2] Trial Court Cause No. 1071518. [3] Trial Court Cause Nos. 1084837, 1084838. [4] Safety National cites Acevedo v. State to support its contention that an order continuing a prosecution must include the name of the defendant. 18 S.W.3d 775, 776B77 (Tex. App.CSan Antonio 2000, no pet.). This case, however, does not stand for that proposition; rather, the Fourth Court of Appeals concluded that because the defendant=s name was included on carry-over lists from two previous court terms, but was not included on a carry-over list from the last term to the term in which he was indicted, the prosecution of his case was not continued by order of the court. Id. Moreover, the fact that the grand juries in Bexar County apparently include lists of pending cases on carry-over orders has no bearing on the practices of Harris County grand juries. [5] The only case cited by Safety National in support of this issue is Allegheny Casualty Co. v. State. 52 S.W.3d 894, 900 (Tex. App.CEl Paso 2001, no pet.). This case does not support Safety National=s contention that Aonce the trial court revokes a bond it is no longer a valid and binding undertaking under the law.@ Instead, the Eighth Court of Appeals concluded that the surety had not established it was released from liability when a personal bond was revoked. Id. [6] This section of article 17.40(b) was amended after the bonds in this case were executed. See Act of May 25, 2007, 80th Leg., R.S., ch. 1113, ' 4, 2007 Tex. Gen. Laws 3758, 3759 (eff. Jan. 1, 2008). Regardless of its application to this particular case, however, it provides additional support that our Legislature contemplated sureties would remain liable on bonds until the principal is either in custody or has had the charges against him determined.