Tom Benson v. State

ACCEPTED 03-15-00121-CR 5184558 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/6/2015 11:26:48 PM JEFFREY D. KYLE CLERK

NO. 03-15-00121-CR FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS THIRD DISTRICT OF TEXAS 5/6/2015 11:26:48 PM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk

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

IDENTITY OF PARTIES AND COUNSEL

Appellant Counsel (Trial and Appeal)

Tom Benson Pro Se 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 Counsel (Trial and Appeal)

The State of Texas 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 of Review . ........................................... 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

Great Am. Reserve Ins. Co. v. San Antonio 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

VI

STATEMENT OF THE CASE

Nature of the case. Appellee, the State of Texas, ["State"] sued appellant to enforce the forfeiture of a bail bond. (CR. 4 ). Appellant, ["Surety"] filed a general denial and asserted a affirmative defense provided by statute. (CR. 14-15).

Course of proceedings. The State moved for a summary judgment. (CR. 9-13). The Surety filed a response and provided additional summary judgment 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

viii

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.

APPELLANTS' BRIEF

STATEMENT OF FACTS

On November 29, 2013, Brian Roy Whipple, date ofbirth 1 XX/XX/XXXX was released from jail 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 of Travis County. (CR. 4). He failed to appear as required. (CR. 4). A judgment nisi was properly issued. (CR. 4). On December 4, 2014, the State filed its Motion for Summary Judgment and summary judgment proof consisting

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

of the bond and the judgment nisi. (CR. 9-13). The State's motion requested a judgment for the penal sum of the 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 , a jurisdiction within the United States, within 180 days from the date of his failure to appear, February 14, 2014. (CR. 16-20). The Surety provided additional summary judgment evidence which was attached to, and incorporated into, his response, in the form of documentary evidence (CR. 18 ,-i,-i 11 and 12) and (CR. 21-23) and evidence provided by judicial notice. (CR. 18 ,-i,-i 11 and 13). The State did not file any reply to the Surety's response or summary judgment 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 of court. (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 of birth 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.

24-25). No post judgment motions were filed. The Surety timely filed a notion of appeal. (CR. 26-28). This brief will be timely if filed 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 summary judgment evidence supporting every element of the 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 of Review

Summary judgment 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 summary judgment de novo. Joe v. Two Thirty Nine *4 Joint Venture, 145 S.W.3d 150, 156 (Tex.2004).

In this traditional summary judgment case, the issue on appeal is whether the State, as movant, met its summary judgment burden by establishing that no genuine issue of material 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 of proof is on the State, and all doubts about the existence of a genuine issue of material 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); Great Am. 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 summary judgment, 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. Great Am., supra, 391 S.W.2d at 47.

When a defendant raises an affirmative defense in opposition to a motion for summary judgment, he must present sufficient summary judgment proof to raise a fact issue on each element of his affirmative defense. Nichols v. Smith, 507 *5 S.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 prima facie case in its motion for summary judgment. The State was required to produce evidence of a bail bond and a judgment 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 proof on every element of the 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, a jurisdiction within the United States, and it was *6 within 180 days from the date of his 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, if any, from liability upon the forfeiture taken: ..... 5. The incarceration of the principal in any jurisdiction in the United States: (A) in the case of a misdemeanor, at the time of or not later than the 180th day after the date of the principal 's failure to appear in court; (B) in the case of a felony, at the time of or not later than the 270th day after the date of the principal 's failure to appear in court. (b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to pay costs of court, any reasonable and necessary costs incurred by a county to secure the return of the principal, and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal 's incarceration.

Although the statute does call it an affirmative defense it meets the definition of one. An affirmative defense does not seek to defend by merely *7 denying the plaintiff's claims, but rather seeks to establish "an independent reason why the plaintiff should 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 of the 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.

SURETY'S SUMMARY JUDGMENT PROOF

There is summary judgment proof in the record regarding each of the elements required by art. 22. l 3a)(5)(A):

1. Incarceration of principal, Brian Roy Whipple.

Supplied by Exhibit "l ",page 3 (CR. 23) which is an incarceration verification letter from the Sheriff of Clark County Nevada stating that (1) that Brian Whipple DOB: XXXX was incarcerated in the Clark County Detention Center, Las Vegas, Nevada; and (2) on June 29, 2014. The date of birth for Brian

5 Surety requested the Trial Court to take judicial notice of his First Amended Answer. (CR.18, i/ 13 (6)).

Whipple on the bail bond in this case is XX-XX-XXXX. (CR. 5 and 13). The date of birth specified in the incarceration verification letter and the date of birth specified on the bail bond in this case are the same. (CR. 5, 13 and 23).

2. Within any jurisdiction in the United States.

Supplied by requests for judicial notice that: Clark County is located in the State of Nevada; the City of Las Vegas, Nevada is located in Clark County; and both the City of Las Vegas, Nevada and Clark County, Nevada are jurisdictions located within the United States. (CR. 18, ~ 13 (1 )(2)(3)).

3. Principal, Brian Whipple is charged with a misdemeanor.

Supplied by the judgment nisi. (CR. 4 and 12).

4. Incarceration of Brian 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 the judgment nisi. (CR. 4 and 12). The date of his incarceration was June 29, 2014. This is shown on Exhibit "1 ",page 3 (CR. 23). The Trial Court was requested to take judicial notice that the period of time between February 14, 2014 and June 29, 2014 was less than 180 days. (CR. 18, ~ 13 (5).

Reviewing this summary judgment evidence, the genuine issue of fact to be resolved by a trier of fact is whether or not the Brian Whipple specified in the *9 verification letter from the Sheriff of Clark County Nevada is the Brian Whipple that is the principal on the bond in this case. The date of birth, 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 of a middle name creates an inference of doubt that the correct defendant is specified in the letter. For the purposes of the summary judgment only, the inferences are resolved in the favor of the Surety. "Every reasonable inference from the evidence must be indulged in favor of the 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

The judgment entered by the Trial Court was for the face amount of the bond $5,000.00 plus costs of court. Art. 22. l 3(a)(5)(A) and the summary judgment proof presented, effectively mitigates the legal consequences of the 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 of the forfeiture, except costs of court, any reasonable and necessary costs incurred by a county to *10 secure the return of the principal, and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal 's incarceration. See art. 22.13(b). The Trial Court of course will be free on remand to resolve the facts regarding the Surety's affirmative defense, and if proved, the amount of expenses, costs and interest the State is due.

CONCLUSION

Faced with the Surety's response6 and the summary judgment proof before 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 of the surety's response and summary judgment evidence.

At heart, this case is very simple. Granting a summary judgment despite a pled affirmative defense by the non-movant supported with summary judgment evidence is an error that caused the trial court to render an improper judgment which should be reversed and remanded to the trial court.

REQUEST FOR RELIEF

Appellant respectfully request that this Court reverse the judgment of the

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

trial court, remand the cause to the trial court and grant such other and further relief as to which he has shown himself entitled.

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 of the document listed in Texas Rules of Appellate Procedure 9.4(i)(l).

/s/ Tom Benson

Tom Benson

CERTIFICATE OF SERVICE

I certify that on May 6, 2015, a true and correct copy of the foregoing Appellants' Brief and 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

APPELLANT'S APPENDIX

ITEM BOOKMARK NO.

Trial Court's Judgment dated January 21, 2015 1 Tex. R. Civ. P. 166a(c) 2 Tex. Code Crim. Proc. 22.10 3 Tex. Code Crim. Proc. 22.13 4 Bail Bond 5 Letter from the Sheriff of Clark County Nevada 6 State's Motion For Summary Judgment and proof 7 Surety's First Amended Original Answer 8 Surety's Summary Judgment Response and proof 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 § COifJ°tiTY COURT AT LAW § "'NA OcSEAUVo,., COUNTY CLERK v. § TRAVIS COUNTY, TEXAsNO. 7 § BRIAN ROY WHIPPLE and § TOM BENSON § TRAVIS COUNTY, TEXAS

FINAL JUDGMENT

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. Illllll lllll lllll 000939084 lllll 111111111111111111111111111111111 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 FINAL JUDGMENT (SURETY BOND)- PAGE 1

Appellants Brief Page 014

• officer's return thereon, has been on file with the Clerk of the Court for at least ten days

exclusive of the day of filing and the day of judgment.

Therefore, the Court orders 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 Tom Benson, as Surety-Defendant;

2. Costs of suit are taxed against Brian Roy Whipple and Tom Benson, jointly and severally;

3. The State of Texas, shall have all writs of execution and other process necessary to enforce this judgment; and

4. This judgment finally disposes of all 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 FINAL JUDGMENT (SURETY BOND)- PAGE 2

Appellants Brief Page 015

RULE 166a(c). SUMMARY JUDGMENT (c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, 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 of court, 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. The judgment 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 of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law 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 summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an

Appellants Brief Page 016 expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

Appellants Brief Page 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 of the State of Texas, as plaintiff, and the principal and his sureties, if any, 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 Brief Page 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, 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. 2. The death of the principal before the forfeiture was taken. 3. The sickness of the 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, if any, 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 Brief Page 019 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 where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court. 5. The incarceration of the principal in any jurisdiction in the United States: (A) in the case of a misdemeanor, at the time of or not later than the 180th day after the date of the principal 's failure to appear in court; or (B) in the case of a felony, at the time of or not later than the 270th day after the date of the principal 's failure to appear in court. (b) A surety exonerated under Subdivision 5, Subsection (a), remains obligated to pay costs of court, any reasonable and necessary costs incurred by a county to secure the return of the principal, and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal 's incarceration.

Appellants Brief Page 020 ' )

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Appellants Brief Page 021 ..

XXX

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

THE STATE OF TEXAS § COUN1YCOURTATLAW § v. § N0.7 § BRIAN ROY WHIPPLE and § TOM BENSON § TRAVIS COUNlY, TEXAS

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE COURT:

Plaintiff, the State of Texas, files this motion for summary judgment1 and in support thereof would respectfully 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 '=t name was distinctly called at the courthouse door; and (3) the defendant failed to :-1 l=c :=== appear within a reasonable-time of that call. Burns v. State, 861 S.W.2d 878, 888 (Tex. ·- '-( 1-. Crim. App. 1993).

-~ -· -- -< iiiiiii ~ I

The summary judgment evidence, which is comprised of the appearance bond = 11

executed by Defendants2 and the order forfeiting that bond,3 establishes each of these =2 -- II

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 iiiiiii !!!!!!!!

Brian Roy Whipple was served with citation, has not made an appearance and is in default 2 A certified copy of the bond is attached hereto as Exhibit A. 3 A certified copy of the Judgment Nisi is attached hereto as Exhibit 8.

321313 Pl.AINTin's MOTION FOR SUMMARY JUDGMENT (SURETY BoNo)- PACI 1

Appellants Brief Page 023 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 THE SUMMARY 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 of Travis County in cause

no. C-1-CR-13-501684.5 On February 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 of the 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 of the elements of the State's cause of action.

IIL PRAYER

The State of Texas, Plaintiff, respectfully requests that the Court grant this motion and render judgment against Brian Roy Whipple, as Principal, and Tom Benson, as Surety, jointly and severally, in the amount of $5,000.00 plus court costs.

4 See Exhibit A. 5 See Exhibit A. 6 See Exhibit B. 1 See Exhibit B. 8 See Exhibit B.

321313

PlAJNTJpp'5 MonoN l'OR SUMMAR\' JU0CM1!flrt' (SuaEn BoNo)- PAGI! 2

Appellants Brief Page 024

Respectfully submitted,

DAVID ESCAMILLA TRAVIS~CO ATIO~ c..-.9 •• By: Ti badie Assistant Travis County Attorney State Bar No. 11784853 P.O. Box 1(48 Austin, TeXa5 78767 (512) 854-9513 (512) 854-4808 (fax)

NOTICE OF HEARING

Plaintiff's Motion for Summary Judgment is set for hearing on January 21, 2015 at9:00a.m. ~-...C..

· badie

CERTIFICATE OF SERVICE

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 correct copy of the foregoing was served by fax on: Mr. Tom Benson 900 Jackson Street, Suite 750 Dallas, Texas 75202 Fax - 214-742-9879

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

Appellants Brief Page 025

Filed: 3fl112014 3:57'.54 PM Dana OeBeewoir Travis Coun~ Clefk C-1-CV-14.oo229' Guy Oeles9io

nm STATE OF TEXAS I COUN1Y COUltT AT LAW I vs. f N0.7 f f I TRAVIS COUNTY, TEXAS

.DJDGMr.NT Niii On Pcbl_,- 14, 2014, C1U1C . . . _ C·l-cR.·13-501614 W8S calW for trill. Tiii Sllle of Tam.,,..... "1 ill County Aaamey. 'Ille DeCcadanl. Brian Roy Whipple. failed to IPPCll' ... w . 'l1la9upoa, ... DetcadMll'• - - ,,. called dbtiDcdy Ill dw door of Ibo ~ IDCI ..,...,_ aiYeft a llllDGIWe time eo..,,_. However, the Defcndlnt fliJed to ......... wboll, ............

Tbe Coult &m dllt die DdwiA-., 8ri1D Ito)' Wbipple. • pinGipll.10pdler wida Tom I m (dbl NA F• a.ii Ba.di).• ..-y, on Nov.bcr 29, 2013, exadld a bond payable to dle-ofTCIUI in tht .... MD of SS.000.00 conditiaald dlll the Defendllll, • priaeipil. mouJd -a..._,__. ........ Wen the County Coult Ill Law No. 7, Tmvil Coant)', Tam. • tbl Tmll CGmll)' ~ in Amdn. Tcua. Ill its ...... -... now in -.iola, ...._,, 11111 tbae ...m hm-,. ro day llld tam to 111m of dlil Cowt mlil ~by dae oourll of law, IO __.die S.. of Texas upon a chlll' b)' coq>lliat and infonmlion .._. ftled eccum. IUmlhc:rortbe.,.,.. mlldaamwr olfeme: FALSE STATEMENT FOR PROPERTY/CREDIT. The Coult . . . . . doc'- ....... ~ bond is folftiled. The Coan ORDERS dllt lbe S.. of Tew aeccwer hm Brim Ito)' Wldpple, priDcipll. and Tom Bcmoa. IURll)', 1hc MD of SS,000.00 IDCI dllt 1IU judplmt .U lie IDldc ftall Ullea pd CIUIC lie .,... ...., . . Ddendlnt did - r· Sipedoa ty/,~~ v( ~{ 0

McnilJ lir ... Sllle ofTeua: Dlvill A. Ela•Bll. TNVil CGallly AllDnlly P.O.la1741 MMi1a. TX 71767 ..... (512)154-9513 11111111111111 000840518 Fax: (512) 154 tlOI BOND LD. msH VOL. _ _ _ PAOE _ __

E.~h\b\t.__..\9.- ....--

Appellants Brief Page 026 \~

...______ _ ........ i I' •II

--- --- &l'l'ltl&ti• • • • • •I j I Fl .

t XXXXXXXXXXXXXX

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"' _________ ..... ,_ ___ -- "' - •

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J=vhibit_ -·~- ·..

Appellants Brief Page 027 \J

.. • C-1-CV-14-002294 • Filed: 1/13/2015 5:33:22 PM Dana DeBeauvoir Travis County Clerk C-1-CV-14-002294 Ne. C 1 14 09229~ Andrea Scott (CRIMINAL No. 1-CR-13-501684)

THE STATE OF TEXAS § IN THE COUNTY COURT § vs. § § AT LAW No. 7 BRIAN ROY WHIPPLE and § TOM BENSON § § TRAVIS COUNTY, TEXAS

DEFENDA."IT'S FIRST AMENDED ORIGINAL ANSWER

Defendant, Tom Benson, files his First Ame.nded Original Answer.

A. General Denial

1. Defendant generally denies the allegations of plaintiff.

B. Affinnative Defense

2. Defendant is not liable to plaintiff for the amount of the 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, a jurisdiction within

the United States, within 180 days from the date of bis failure to appear as required on February

14, 2014.

C. Prayer

3. For these reasons, defendant asked the Court render judgment that plaintiff be awarded

only, costs of court, any reasonable and necessary costs incurred by a county to secure the return

of the principal, and interest accrued on the bond amount from the date of the judgment nisi to

the date of the principal 's incarceration as provided in art. 22.13(5)(b) TEX. CODE CRIM. PROC.,

and award all other relief to which defendant is entitled.

Defendant's First Amended Original Answer - Page l of 2 Pages Case # C-1-CV-14-002294

1111111111111111111111111111111111111111111111111111111 Appellants Brief Page 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

I certify that I have on this 13th day of January, 2015, before S:OO P.M., caused a true and correct copy of the foregoing Defendant's First Amended Original Answer to be delivered to Tim Labadie, Assistant Travis County Attorney by email to: tim.labadie@traviscountytx.gov.

Isl Tom Benson

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

Appellants Brief Page 029

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

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 FOR SUMMARY JUDGMENT AND REQUESTS FOR COVRTTO TAKE JUDICIAL NOTICE

Defendant asks the court to deny pla.intifrs motion for summary judgment and to take Judicial Notice as requested herein.

A. Introduction

1. Plaintiff is The State of Texas; defendant is Tom Benson.

2. Plaintiff sued defendant for forfeiture of a bail 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, a jurisdiction within the United States, within 180 days from the date ofhis failure to appear as required on February 14, 2014.

B. Facts

4. Plaintiff filed a motion for summary judgment based on its cause of actfon for forfeiture of a bail bond in a criminal case. S. Defendant attaches Exhibit 1 to establish facts not apparent from the record and incorporates it by reference.

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 Brief Page 0301111111111111111111111111111111111111111111111111111111 \\(:>

C. Argument & Authorities

6. In deciding whether there is a disputed issue of material fact that precludes summary judgment, the court takes as true all evidence favorable to the nonmovant. Limestone Prods. 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 ati doubts in favor ofthe nonmovant. Limestone Prods., 71 S. W.3d at 311; Nixon, 690 S.W.2d at 549. 7. The court should denyplaintiff s motion for summary judgment because defendant's answer asserts the affirmative defense of the incarceration of the Defendant-Principal on the bond, Brian Roy Whipple in the Clark County Detention Center, Las Vegas, Nevada, a jurisdiction within the United States, within 180 days from the date of his 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 a fact issue on each element of his 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 of the 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. 1O. The .smnmary-judgment evidence raises a fact issue on each element of the affirmative defense.

Defendant's Response to Plaintiffs Motion for Summary Judgment and Requests to take Judicial Notice - Page 2 of S Pages

Appellants Brief Page 031 \<\

D. Summary-Judgment Evidence

11. Defendant includes the summary·judgment evidence attached to this response and incorporates the evidence into this response by reference. 12. This response depends on the following documentary evidence:

Documentary evidence. "Exhibit l ", which is verified as authentic, establish the following facts:

( 1) that Brian Whipple DOB: XXXXX was incarcerated in the Clark County Detention Center, Las Vegas, Nevada; and

(2) on June 29, 2014. 13. This response additionally depends on the following evidence provided by judicial notice:

,fudlclal Notice. Defendant requests the Court to take judicial notice :

(1) that Clark County is located in the State of Nevada;

(2) that the Cjty of Las Vegas, Nevada is located in Clark County~

(3) that both the City of Las Vegas, Nevada and Clark County, Nevada are jurisdictions 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 of days between February 14, 2014 and June 29 1 2014 is less that 180 days;

(6) of the Defendant's First Amended Original Answer filed in this case; and

(7) that the principal Brian Roy Whipple's date of birth specified on the bond that is the subject matter of this suit isXXXXXX .

Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take Judicial Notice - Page 3 of 5 Pages

Appellants Brief Page 032 ,ro

E. Conclusion

14. Because the Defendant·Principal, Brian Roy Whipple was incarcerated in the Clark County Detention Center, Las Vegas, Nevada, a jurisdiction within the United States, on June 29, 2014, which within 180 days from the date of his failure to appear on February 14, 20l4, the State is not entitled to recover $5 ,000.00. It is only entitled to recover costs of court 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 (the date of the principal 's incarceration). Had the State provided any summary judgment proof of any reasonable and necessary costs incurred by a county to secure the return of the principal it would have been entitled to these costs also but there is no evidence before the Court of these costs and therefore the State is not entitled to them.

F. Prayer 1S. For these reasons, defendant asks the court to denyplaintiff"s motion for summary judgment

or aJternariveJy, enter a judgment only for costs of coun 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 of the principal 's incarceration).

Respectfully submitted,

Isl Tom 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 of 5 Pages

Appellants Brief Page 033

CERTIFICATE OF SERVICE

I certify that I have on this 13th day of January, 2015, before 5:00 P.M., caused a true and correct copy of the foregoing Defendant's Response to State's Motion for Summary Judgment with attachments to be delivered to Tim Labadie, Assistant Travis County Attorney by email to: tim.labadie@traviscountytx.gov.

Isl Tom Benson

Tom Benson

Defendant's Response to Plaintiff's Motion for Summary Judgment and Requests to take Judicial Notice - Page 5 of S Pages

Appellants Brief Page 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 by me duly sworn, deposed as follows: "My name is Tom Benson, 1 am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated: I am the cust.00.ian of the records of Tom Benson dlb/a Act Fast Bail Bonds of Fort Worth, Texas. Attached hereto is one page of records from Tom Benson d/b/a Act Fast Bail Bonds of Fort Worth, Tex.as. The said one page of records are kept by Tom Benson d/b/a Act Fast Bail Bonds of Fort Worth, Texas in the regular course of business, and it was the regular practice of said entity for an employee or representative with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit infonnation thereof to 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 of the original."

..:.._._. . . ..,.om Benson SWORN TO AND SUBSCRIBED before me on the 6th day of January, 2015.

.. lfllCIA•- N'7tOty ftUbllc. Stote of Tete• ~7V Mv~o~ntJ NOTARY PUB.Lie

Business Record Affidavit • Page 1 of 1 Pages

Appellants Brief Page 035 rv\

' .

CERTIFICATE OF SERVICE

I certify that I have on this 6th day of January. 2015, before 5:00 P.M., caused a true and correct copy of the 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 2 of 2 Pages

Appellants Brief Page 036 tl 1.; v

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