Eddie Trevino, Jr. v. State ( 2005 )

              NUMBERS 13-04-046-CV AND 13-04-047-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

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EDDIE TREVINO, JR.,                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

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                  On appeal from the 103rd District Court

                          of Cameron County, Texas.

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                     MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                      Memorandum Opinion by Justice Rodriguez

These appeals are from final judgments forfeiting bail bonds after entry of  judgments nisi.^[1]  By two points of error, appellant and surety, Eddie Trevino, Jr., complains the trial court erred (1) in granting final judgments because there was a fatal variance between the offense for which principal, Arturo Perez, failed to appear and the offense for which Trevino agreed to act as surety on the bail bonds, and (2) in taking judicial notice of its criminal files.^[2]  We affirm.

I.  Background

All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

II.  Analysis

By his first point of error, Trevino contends that the trial court erred in entering final judgments for the State because it was not obvious from the evidence that the offense cited in the judgment nisi was the same offense on which he had agreed to act as surety on the bail bonds; thus, a fatal variance existed.  We disagree.

Article 22.13 of the code of criminal procedure provides that a surety will be exonerated from liability if "the bond is, for any cause, not a valid and binding undertaking in law."  Tex. Code Crim. Proc. Ann. art. 22.13(a)(1) (Vernon Supp. 2004-05). Article 17.08 sets forth the requisites of a bail bond, which include, "[t]hat the defendant and his sureties, if any, bind themselves that the defendant will appear before the proper court or magistrate to answer the accusation against him[.]" Id. at art. 17.08(2) (Vernon 2005).  "In bail bond forfeiture trials, the State has the burden of proof."  Williams v. State, 82 S.W.3d 788, 790 (Tex. App.BCorpus Christi 2002, no pet.).  "The bond and the judgment nisi are the two essential elements of the State=s cause of action."  Id. A trial court may take judicial notice of the judgment nisi.  Id. (citing Hokr v. State, 545 S.W.2d 463, 466 (Tex. Crim. App. 1977)).

In each underlying case, a $25,000.00 bail bond signed by Trevino and Perez was admitted into evidence at the final hearing, and the trial court took judicial notice of the judgment nisi. Each bond identified the charge against Perez as a felony "to wit:  Theft by Possession."  Each judgment nisi set out that the indictment accused Perez of engaging in organized criminal activity, a felony, and that Perez failed to appear and answer on his behalf.^[3]  Without objection, the State also requested that the trial court take judicial notice of the criminal file.

Having taken judicial notice of its file, specifically the indictment and the surety bonds, and before entering final judgments, the trial court found that the criminal indictment charged Perez with four separate acts of theft by possession with each act constituting a criminal conspiracy, and that all offenses arose out of the same criminal episode.  While acknowledging that the original charge as presented before the magistrate was theft by possession, the trial court concluded that the original bonds carried over to the indictment.

From the indictment it can be determined that the organized criminal activity allegations arose from the same criminal episode as the alleged acts of theft by possession and that Perez was charged with separate acts of theft by possession with each act constituting the felony of engaging in organized criminal activity, a criminal conspiracy. Based on the record before us, including the trial court's findings set out above, we conclude the variance, if any, between the bail bonds signed by appellant and the judgment nisi was reconciled and, thus, was not fatal.^[4]  We overrule Trevino's first point of error.

III.  Conclusion

Accordingly, we affirm the trial court=s judgments.                                                                                

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and filed

this 14th day of July, 2005.

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^[1]Because the cases arise from the same fact situation and present the same issues for our review, they will be disposed of in a single opinion.

^[2]In point of error two Trevino contends that in order to overcome or explain the alleged variance, the trial court could not take judicial notice of the underlying criminal files, but rather the State was required to introduce evidence into the record.  See Tex. R. Evid. 201(b) (describing a judicially noticed fact as one that is generally known within the territorial jurisdiction of the trial court or that is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned).  However Trevino waived this challenge by not objecting.  See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a).  We overrule the second point of error.

^[3]Chapter 71 of the penal code defines someone engaging in organized criminal activity as "[a] person [who] commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a street gang, he commits or conspires to commit one or more of the following:  (1) . . . theft . . . ."  Tex. Pen. Code Ann. ' 71.02(a)(1) (Vernon Supp. 2004-05).  Theft by possession is included in the definition of theft.  See id. '' 31.01(4)(B),  31.03(a), (b)(1) & (2).

^[4]Trevino relies on Deckard v. State, 605 S.W.2d 918 (Tex. Crim. App. 1980), Shropshire v. State, 433 S.W.2d 898 (Tex. Crim. App. 1968), and Picaroni v. State, 364 S.W.2d 240 (Tex. Crim. App. 1963).  However, each is distinguishable from the present case. See Deckard, 605 S.W.2d at 921 (holding variance fatal where State should have presented some evidence which would have reconciled the variance by identifying the two offenses, possession of narcotic paraphernalia and possession of a  controlled substance, namely heroin, as elements of the same ongoing criminal action); Shropshire, 433 S.W.2d at 899-900 (reversing bond forfeiture judgment where variance was fatal when evidence established appellant had been indicted for forgery and uttering and passing as true a forged instrument and had been bonded out for theft by false pretext); Picaroni, 364 S.W.2d at 242 (concluding fatal variance where the court was in no position to say that the bond for appearance of the principal in a justice court became an obligation binding the principal and surety for the principal's appearance in district court); see also Garza v. State, 50 S.W.3d 619, 621 (Tex. App.BCorpus Christ 2001, no pet.) (citing Scott v. State, 649 S.W.2d 354, 357 (Tex. App.BEastland 1983, no writ) (noting fatal variance has also been found where there was a variance between the name of the surety on the bond and the name on the judgment)).