Court the Appeals the Texas,San Antonio.

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Roland GARCIA, lawyer at Law, Surety, Appellant, v. STATE of Texas, Appellee.

OPINION

This is one appeal indigenous a bail bond forfeiture. Appellant Roland Garcia, lawyer for san Juan Gustamante, executed a $50,000 bail bond because that his client. Once Gustamante failed come appear, the State sought and obtained a bond forfeiture. Garcia, together surety, appeals. Us affirm the attempt court"s judgment.

Background

On February 27, 2003, Gustamante was arrested and charged with possession of cocaine. Later on that year, under reason number 2003-CR-4621W, Gustamante pled to possession v intent to deliver a controlled substance in penalty team one in one amount more than four grams yet less than 2 hundred grams. After being sentenced come a hatchet of eighteen year in prison in accordance through his plea agreement, Gustamante filed a movement for brand-new trial that was ultimately granted. Garcia ended up being Gustamante"s lawyer and, together surety, enforcement a $50,000 bond on Gustamante"s instead of on October 31, 2003.

On November 19, 2003, Gustamante to be indicted under a brand-new cause number because that the offenses the possession through intent come deliver, and also possession of, a managed substance in penalty group one in one amount an ext than four grams but less than 2 hundred grams. The date of the offenses to be the same day as the original charge. However, the State also added an enhancement paragraph to the indictment, alleging Gustamante had previously to be convicted that a felony offense. See Tex. Penal code Ann. § 12.42 (Vernon Supp.2008) (providing for amplified punishment because that repeat offenders). Subsequently, the State relocated to dismiss cause number 2003-CR-4621W, and also the activity was granted.

After the indictment to be returned, and also without Garcia"s knowledge, the initial bond was transformed by crossing out the original cause number and also writing in the new cause number. In respectable of 2004, Gustamante appeared and also pled come the indicted offense. At the point, Garcia supposedly was no much longer attorney because that Gustamante. As part of the plea agreement, the State dropped the improvement paragraph and recommended a “cap” the twelve years. Gustamante was to appear on October 18, 2004, because that sentencing, but did not. The trial court signed a referee Nisi versus Gustamante and also Garcia ~ above November 18, 2004.

More than three years later, ~ above February 14, 2008, the psychological court held a bond forfeiture hearing. Gustamante to be still a fugitive at the time of the hearing. In ~ the hearing, the court take it judicial notice of the court"s file, including the referee Nisi and, end Garcia"s objection, admitted the bail link into evidence without a sponsoring witness. Garcia testified he to be unaware that the re-indictment, regardless of the fact he was counsel of record for Gustamante at the moment it was issued, and that he would certainly not have actually consented to remain on the bond if he had actually known about the enhancement of the enhancement paragraph. That testified that the enhancement of the improvement paragraph increased the minimum punishment, making Gustamante ineligible because that probation. Follow to Garcia, this boost in the selection of punishment-specifically the exemption of the opportunity of probation-made it much more likely that Gustamante would certainly flee, thereby raising Garcia"s hazard on the bond.

At the conclusion the the hearing, the trial court ruled in favor of the State and also the following day signed the final judgment awarding the State $50,000. At Garcia"s request, the attempt court made result of fact and also conclusions that law.

Analysis

Garcia bring three concerns on appeal, contending the psychological court erred in approving the final judgment in donate of the State due to the fact that (1) over there was poor evidence, (2) the State modification the terms of the bond without Garcia"s consent, and also (3) over there is a fatal and also material variance in between the bond, the judgment nisi, and also the indictment.

Variance in between Bond, Indictment, and Judgment Nisi

Garcia insurance claims the attempt court erred in granting last judgment because there is a “fatal and material variance” in the bail bond, referee nisi, and the indictment.

The bond reflects the criminal fee as “Poss W/I Del C/S PG1 4g-200g.” The indictment has two counts alleged to have been committed on the same date-possession with intent to supply a “controlled substance, namely: COCAINE, which by aggregate weight ․ to be of one amount four (4) GRAMS OR much more BUT less THAN two HUNDRED (200) GRAMS,” and a lesser charge of possession that the same controlled substance in a similar amount. The referee nisi mirrors a felony fee of possession with intent to deliver a managed substance (penalty team one) of between four and also two hundred grams.1 all three documents refer to the very same charge. Over there is merely no variance among the documents.

Garcia, however, suggests the addition of the enhancement paragraph readjusted the offense for i m sorry he undertook the original bond. The asserts the indictment “recites a various and much more serious felony charge” 보다 the one alleged in the bond. Us disagree. The addition of the allegation in the indictment that Gustamante had been formerly convicted the a felony walk not change the offense however rather the selection of penalty applicable to the offense. The State need not prove the commission of the prior offense in the guilt/innocence phase of the psychological to attain a conviction. See usually Brooks v. State, 957 S.W.2d 30, 32 (Tex.Crim.App.1997). The enhancement paragraph was relevant only to sentencing and also did not change the underlying charge. Check out Square v. State, 145 Tex.Crim. 219, 167 S.W.2d 192, 193-94 (1942). Accordingly, we overrule this point of error.

Modification that Surety link Terms

Garcia claims that by adding the enhancement paragraph to the indictment, the State increased the danger he undertook as surety there is no his consent. Garcia argues that since the original bond was for a very first degree felony without a “repeater” allegation, the State, through potentially boosting the punishment applicable to the charge, unilaterally and also without his consent increased his risk, and therefore cannot recover on the bond forfeiture. Us again disagree through his arguments and conclusion.

Garcia cites numerous federal decisions and also decisions from outside Texas to support his argument. Check out Reese v. U.S., 9 Wall. 13, 76 U.S. 13, 19 L.Ed. 541 (1869) (holding surety to be discharged on commonwealth bail bond as soon as Government allowed principal to return to Mexico there is no surety"s agreement); U.S. V. Galvez-Uriarte, 709 F.2d 1323 (9th Cir.1983) (same); continental Cas. Co. V. U.S., 337 F.2d 602 (1st Cir.1964) (holding attorney-surety was no discharged on federal bail bond when attorney-surety knew court had provided principal permission to leave country before federal bond to be executed by “actual creating agent”); people v. Jones, 873 P.2d 36 (Colo.App.1994) (holding sureties to be discharged top top bond because subsequent submit of habitual criminal charges against principal materially increased risk come sureties); Am. Bankers Ins. Co. V. Monroe County, 644 So.2d 560 (Fla.Dist.Ct.App.1994), rev. Denied, 654 So.2d 919 (Fla.1995) (holding surety was discharged on shortcut because addition of conspiracy fee substantially boosted risk come surety); Midland Ins. Co. V. State, 354 So.2d 961 (Fla.Dist.Ct.App.1978) (holding surety was discharged ~ above bond once principal was initially charged with second degree murder and then indicted for very first degree murder since difference in punishments was possibly substantial-life sentence versus fatality penalty); State v. Ceylan, 352 N.J.Super. 139, 799 A.2d 685 (2002), cert. Denied, 174 N.J. 545, 810 A.2d 64 (2002) (holding that surety was discharged on bond since post-verdict relax of major after conviction materially boosted risk come surety). Garcia likewise relies on provisions that the 3rd Restatement of legislation of Suretyship and Guaranty. Watch Restatement (Third) the Suretyship & Guaranty (1996). However, Garcia does not cite any kind of Texas instances in i beg your pardon the cited provisions that the Restatement have actually been adopted.2 He also fails to reconcile any kind of of the cited authorities with short article 17.09 that the Texas code of Criminal Procedure, which states:

Sec. 1. Wherein a defendant, in the food of a criminal action, provides bail before any court or person authorized by regulation to take it same, because that his an individual appearance prior to a court or magistrate, come answer a charge against him, the claimed bond shall be valid and binding upon the defendant and also his sureties, if any, thereon, for the defendant"s an individual appearance prior to the court or magistrate designated therein, and also before any other court to which same might be transferred, and also for any and all subsequent proceedings had relative come the charge, and also each together bond shall it is in so conditioned other than as hereinafter provided.

Sec. 2. Once a defendant has actually once given bail for his appearance in answer come a criminal charge, that shall not be forced to give another bond in the food of the exact same criminal activity except as herein provided.

Tex.Code Crim. Proc. Ann. Art. 17.09 §§ 1, 2 (Vernon Supp.2008).

Although Shropshire, Deckard, and also Trevino analyze the problem in light of whether there to be a variance in between the referee nisi and also the last judgment, the thinking in those opinions displayed why Garcia"s argument fails. Our law clearly contemplates the surety will proceed to it is in liable for his bond also though the severity of criminal charges may change as lengthy as any kind of subsequent charge is appropriate to, or arises the end of the very same episode as, the original. See Tex.Code Crim. Proc. Ann. Art. 17.09 §§ 1, 2 (Vernon Supp.2008). That is clear from the record that Gustamante"s indictment because that possession with intent to distribution cocaine in an lot over four grams to be a succeeding proceeding pertained to the initial charge-the State merely broadened upon the initial charge for objectives of punishment by adding an enhancement paragraph. Accordingly, the bond for the original charge to be valid and also binding for the succeeding indictment, and we overrule this suggest of error.

Even there is no the applications of post 17.09, Garcia"s argument fails based on the facts of this case. The inclusion of the enhancement paragraph in the indictment increased Gustamante"s potential punishment from five-to-ninety-nine year or life come fifteen-to-ninety-nine year or life. View Tex. Wellness & safety and security Code Ann. § 481.112(d) (Vernon 2003) (stating understanding manufacture, delivery, or possession with intent to deliver managed substance in Penalty team 1 in quantity of four grams or an ext but less than 2 hundred grams is first degree felony); compare Tex. Penal code Ann. § 12.32(a) (Vernon 2003) (stating very first degree felony punishable by imprisonment because that life or for any term of not more than ninety-nine years or less than five years) v Tex. Penal code Ann. § 12.42(c)(1) (stating the if defendant has been formerly convicted of felony, subsequent conviction for another an initial degree felony is punishable by imprisonment for life or for any type of term that not an ext than ninety-nine years or much less than fifteen years). This increase made Gustamante statutorily ineligible for probation. Watch Tex.Code Crim. Proc. Ann. Art. 42.12 § 3(e)(1) (Vernon Supp.2008) (stating defendant not eligible for neighborhood supervision if sentenced to term the imprisonment that exceeds ten years). However, once Gustamante pled, the State to reduce the enhancement paragraph as part of the plea agreement. At this point, Gustamante was exposed come the very same punishment variety as as soon as Garcia executed the bond. Accordingly, when the bond was forfeited, there to be no raised risk to Garcia. We overrule this suggest of error.

Insufficient Evidence

Garcia contends the evidence is poor to assistance the final judgment because the trial court, end his objection, admitted a copy of the link into evidence without inquiry the State to do its offer through a sponsoring witness through a proper predicate. Thus failure, Garcia argues the court did nothing much more than take it judicial notice of the bond, which he contends the court might not do.

The State has actually the burden in a bond forfeiture proceeding to prove the existence of the bond and the justice declaration the its forfeiture, i m sorry is recognized as the referee nisi. Kubosh v. State, 241 S.W.3d 60, 63 (Tex.Crim.App.2007). The State is generally compelled to present and also offer both the bond and also the referee nisi right into evidence. However, the court the criminal appeals has held the trial court might take judicial notification of the referee nisi, Hokr v. State, 545 S.W.2d 463, 466 (Tex.Crim.App.1977), and also has likewise held that under details circumstances the attempt court may take judicial an alert of the bond. Kubosh, 241 S.W.3d in ~ 66-67.

In Kubosh, the appellant suggested the evidence was inadequate to support the attempt court"s bond forfeiture judgment because the psychological court might not take judicial an alert of the bond. 241 S.W.3d in ~ 63-64. The court the criminal appeals disagreed. Id. At 66-67. The court reasoned that since the appellant did not allege a variance between the bonds in ~ issue and the referee nisi, and the court uncovered none, the attempt court was allowed to take it judicial notice of the bonds. Id. In ~ 65-67.

Here, Gustamante has actually alleged a variance in between the bond and the judgment nisi. However, as disputed above, the record shows no such variance. The record shows that the just difference between the bond originally executed by Garcia and the judgment nisi is the reason number assigned come the criminal case and also the computer number used to monitor the bond. The record develops this difference was produced or resulted in by the State"s decision come dismiss the original instance after Gustamante to be formally indicted on the exact same charge. The State"s activity to dismiss, which to be signed by the court, says the dismissal to be filed due to the fact that the instance had been “reindicted/refiled.” return we recognize the numbers were changed, the changes were no of sufficient substance to constitute a material variance, particularly in light of short article 17.09. Under these circumstances, and consistent with the court"s analysis in Kubosh, the trial court did not err in acquisition judicial an alert of the bond. Accordingly, us overrule Garcia"s sufficiency complaint.

Conclusion

Having overruled appellant"s clues of error, we affirm the trial court"s judgment.

FOOTNOTES

1. The referee actually claims “POSS W/I DEL CS PG1 4G-200G.” Cocaine is a penalty group one managed substance. See health & security Code Ann. § 481.102(3)(D) (Vernon Supp.2008).

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2. In fact, the Restatement has actually been cited only twice in this state. Byrd v. Legacy of Nelms, 154 S.W.3d 149, 164-65 (Tex.App.-Waco 2004, pet. Denied); Ashcraft v. Lookadoo, 952 S.W.2d 907, 919 (Tex.App.-Dallas 1997) (Wright, J., dissenting), pet. Denied, 977 S.W.2d 562 (Tex.1998). No of these cases addresses whether Texas has embraced the Restatement nor carry out they indicate the provisions relied top top by Garcia.