Ernest Admoren-Nweke v. State ( 2020 )

Opinion issued December 3, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-01001-CR
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ERNEST ADMOREN-NWEKE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1648314A
MEMORANDUM OPINION
Appellant Ernest Admoren-Nweke challenges a final judgment rendered
against him in a bail bond forfeiture proceeding.1 Because the amount of the final
1
The final judgment and other filings in the trial court refer to appellant as “Ernest
Admoren-Nweke.” A check of the Harris County District Clerk’s records in the
criminal case, in which the bond was issued, shows that appellant was indicted for
judgment is for less than $20, exclusive of costs, and this appeal does not qualify
as a restricted appeal, this Court lacks jurisdiction. We dismiss the appeal.
Background
Ernest Admoren-Nweke was indicted for the felony offense of aggravated-
sexual assault and released on a $45,000 bond. International Fidelity Insurance
Company was the surety for the bond.2 The bond required Admoren-Nweke to
appear in court for all proceedings.
On October 14, 2019, Admoren-Nweke failed to appear in court as required.
On October 15, 2019, the trial court signed a judgment nisi, declaring the bond
forfeited.3 The trial court ordered an alias capias to issue for Admoren-Nweke’s
the charged offense as “Ernest Admoren-Nweke.” We note appellant is an
attorney, and he represents himself in this appeal. In his briefing, appellant refers
to himself as “Ernest Adimora-Nweke, Jr.” and “Ernest Adimora-Nweke.” The
reason for the discrepancy in appellant’s name is unclear; however, we refer to
appellant as “Ernest Admoren-Nweke,” consistent with the final judgment that he
challenges in this appeal.
2
International Fidelity Insurance Company is not a party to this appeal.
3
The judgment declaring the forfeiture is known as a judgment nisi. See Alvarez v.
State, 861 S.W.2d 878, 880–81 (Tex. Crim. App. 1992). A judgment nisi is a
provisional judgment that is not final or absolute but may become final. Safety
Nat’l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex. Crim. App. 2008). “A
judgment nisi is prima facie proof that the statutory requirements [for bond
forfeiture] have been satisfied and the burden is on the defendant to affirmatively
show otherwise.” Alvarez, 861 S.W.2d at 881. Once a prima facie case has been
established, the burden then shifts to the surety and the defendant to show “good
cause why the defendant did not appear.” TEX. CODE CRIM. PROC. art. 22.02; see
also Safety Nat’l Cas. Corp., 273 S.W.3d at 163 (“Nisi means ‘unless,’ so a
judgment nisi is valid unless a party shows cause why it should be withdrawn.”).
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arrest. Admoren-Nweke was arrested that same day (October 15, 2019) and
returned to custody.
International Fidelity answered the forfeiture and filed a motion for
remittitur of the bond. The request for remittitur was based on Admoren-Nweke’s
arrest and re-incarcerated status. See TEX. CODE CRIM. PROC. art. 22.13(a)(5)(B)
(providing that defendant and his sureties are exonerated from liability on
forfeiture in felony case when principal becomes incarcerated “at the time of or not
later than the 270th day after the date of the principal’s failure to appear in court”);
id. art. 22.16(b) (stating that, “[f]or other good cause shown and before the entry of
a final judgment against the bond, the court in its discretion may remit to the surety
all or part of the amount of the bond after deducting costs and the interest accrued
on the bond amount”).
On November 18, 2019, the trial court signed a final judgment, determining
that “remittitur of all of the amount of the bond after deducting the costs of court
and the interest accrued on the bond amount [was] appropriate.” The final
judgment remitted the full amount of the bond but deducted costs and interest from
the remittitur. It also ordered International Fidelity and Admoren-Nweke held
jointly and severally liable for costs of court and interest.
Regarding calculation of interest, the final judgment states that, pursuant to
Code of Criminal Procedure article 22.13, “interest shall accrue at the interest rate
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provided by law from the date of forfeiture to the date of [Admoren-Nweke’s]
incarceration on October 15, 2019.” For purposes of article 22.13, “forfeiture”
occurs at the time of the judgment nisi. See Hernden v. State, 505 S.W.2d 546, 548
(Tex. Crim. App. 1974); see also TEX. CODE CRIM. PROC. art. 22.13(b) (providing
that surety exonerated under subsection 22.13(a)(5) remains obligated to pay costs
and interest, which accrues on bond amount from date of judgment nisi to date of
defendant’s incarceration). The record shows that the judgment nisi was signed on
October 15, 2019, the same day as Admoren-Nweke’s incarceration. Because
forfeiture and Admoren-Nweke’s incarceration occurred on the same date, $0 in
interest accrued. Thus, the final judgment against Admoren-Nweke and
International Fidelity was for $0 in interest and for costs of court.
Admoren-Nweke appealed the November 18, 2019 final judgment. He filed
his notice of appeal on December 17, 2019, within 30 days after the final judgment
was signed.
Appellate Jurisdiction
Admoren-Nweke contends that this Court has jurisdiction over this appeal
pursuant to article 44.43 of the Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. art. 44.43.
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A. Legal Principles
Our appellate jurisdiction is prescribed by the Texas Legislature. Skinner v.
State, 305 S.W.3d 593, 593 (Tex. Crim. App. 2010). A party may only appeal that
which the legislature has authorized. Olowosuko v. State, 826 S.W.2d 940, 941
(Tex. Crim. App. 1992).
Articles 44.42 and 44.43 of the Code of Criminal Procedure govern appeals
from final judgments in bond forfeiture proceedings. Article 44.42 provides:
An appeal may be taken by the defendant from every final judgment
rendered upon a personal bond, bail bond or bond taken for the
prevention or suppression of offenses, where such judgment is for
twenty dollars or more, exclusive of costs, but not otherwise.
TEX. CODE CRIM. PROC. art. 44.42.
Next, article 44.43 provides:
The defendant may also have any such judgment as is mentioned in
the preceding Article [44.42], and which may have been rendered in
courts other than the justice and corporation courts, reviewed upon
writ of error.
Id. art. 44.43.
Restricted appeals under Rule 30 of the Rules of Appellate Procedure
replaced the former writ-of-error practice. TEX. R. APP. P. 30 cmt.; see Ex parte
E.H., 602 S.W.3d 486, 495 (Tex. 2020). “The writ of error procedure is now the
restricted appeal procedure in Texas Rules of Appellate Procedure 25.1, 26.1(c),
and 30.” Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004).
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Code of Criminal Procedure article 44.44 provides that an appeal under
article 44.42 or 44.43 “shall be regulated by the same rules that govern civil
actions where an appeal is taken or a writ of error sued out.” TEX. CODE CRIM.
PROC. art. 44.44. Thus, Rule of Appellate Procedure 30 applies to restricted
appeals (formerly writ of error appeals) brought pursuant to Code of Criminal
Procedure 44.43. See TEX. CODE CRIM. PROC. arts. 44.43, 44.44; TEX. R. APP. P.
30; see also Int’l Fid. Ins. Co. v. State, No. 10-03-178-CR, 2003 WL 22976423, at
*1 (Tex. App.—Waco Dec. 17, 2003, no pet.) (mem. op., not designated for
publication) (concluding that appeal of bond-forfeiture judgment was “governed by
the same procedural rules which govern civil appeals” and holding that Rule of
Appellate Procedure 42.1(a)(1), governing voluntary dismissals for civil appeals,
applied to permit voluntary dismissal of appeal).
B. Analysis
Admoren-Nweke acknowledges that, because the final judgment here was
for less than $20 exclusive of costs, this Court does not have jurisdiction over this
appeal pursuant to article 44.42. See Casper v. State, 127 S.W.3d 370, 371 (Tex.
App.—Beaumont 2004, pet. ref’d) (dismissing appeal from final judgment in
forfeiture proceeding because judgment was for less than $20 exclusive of costs).
Admoren-Nweke claims, however, that he is entitled to appeal the final judgment
by restricted appeal pursuant to article 44.43. We disagree.
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As set out above, article 44.43 permits a defendant to “have any such
judgment as is mentioned in [article 44.42] . . . reviewed upon writ of error [now a
restricted appeal].” TEX. CODE CRIM. PROC. art. 44.43. Presumably, for purposes of
article 44.43’s application, Admoren-Nweke interprets “such judgment. . .
mentioned” in article 44.42 to mean “every final judgment rendered upon a
personal bond, bail bond or bond taken for the prevention or suppression of
offenses,” as stated in article 44.42, without considering article 44.42’s $20
limitation. See id. arts. 44.42, 44.43. Even if we assume, without deciding, that
such interpretation is correct and that the final judgment here qualifies as “such
judgment . . . mentioned” for purposes of asserting a restricted appeal under article
44.23, that does not end our jurisdictional inquiry. The requirements of Rule 30 of
the Rules of Appellate Procedure, governing restricted appeals, must also be met.
See id. art. 44.44.
Rule 30 provides that “[a] party who did not participate—either in person or
through counsel—in the hearing that resulted in the judgment complained of and
who did not timely file a postjudgment motion or request for findings of fact and
conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a),
may file a notice of appeal within the time permitted by Rule 26.1(c).” TEX. R.
APP. P. 30 (emphasis added); see id. 26.1(a) (requiring notice of appeal to be filed
within thirty days after judgment was signed, except that it must be filed within
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ninety days after judgment was signed if any party filed motion for new trial,
motion to modify judgment, motion to reinstate, or request for findings of fact and
conclusion of law), (c) (requiring, in restricted appeal, notice of appeal to be filed
within six months after judgment or order was signed).
As noted above, Admoren-Nweke’s notice of appeal was filed on December
17, 2019, within thirty days of the November 18, 2019 final judgment.4 Because he
filed his notice of appeal within the time permitted by Rule 26.1(a), Admoren-
Nweke’s appeal is excluded from the scope of a restricted appeal, and we consider
the appeal to be an ordinary, unrestricted appeal. See TEX. R. APP. P. 26.1(a), 30;
see Charles v. Crown Asset Mgmt., LLC, No. 05-18-01139-CV, 2019 WL
6317867, at *2 n.1 (Tex. App.—Dallas Nov. 26, 2019, no pet.) (mem. op.)
(“[Appellee] urges us to limit our review to errors that ‘appear on the face of the
record,’ as we would in a restricted appeal. . . . But this is not a restricted appeal.
The rule providing for restricted appeals excludes parties who, like [appellant],
timely file [i.e., within 30 days] ‘a notice of appeal within the time permitted by
Rule 26.1(a).”); Human Biostar, Inc. v. Celltex Therapeutics Corp., 514 S.W.3d
844, 847 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (concluding—in
case in which appellant had filed its notice of appeal within 30 days of final
4
We note that Admoren-Nweke cited Code of Criminal Procedure article 44.42, not
article 44.43, in his notice of appeal filed on December 17, 2019 as the basis for
his appeal. One month later, Admoren-Nweke filed an amended notice of appeal,
citing articles 44.43 and 44.44.
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judgment—that appellant had “filed [its] notice of appeal within the time permitted
by Rule 26.1(a) and therefore fails to meet the requirements of a restricted
appeal”); Barrett v. Westover Park Cmty. Ass’n, Inc., No. 01-10-01112-CV, 2012
WL 682342, at *2 n.1 (Tex. App.—Houston [1st Dist.] Mar. 1, 2012, no pet.)
(mem. op.) (rejecting appellee’s request that appellant’s appeal be reviewed as
restricted appeal because “rule [30] providing for restricted appeals excepts from
its scope parties who, like [the appellant], timely file ‘a notice of appeal within the
[30-day period] permitted by Rule 26.1(a)’”); Campbell v. Campbell, No. 07-02-
0436-CV, 2003 WL 22681800, at *2 (Tex. App.—Amarillo Nov. 13, 2003, no
pet.) (mem. op.) (“By filing his notice of appeal within 30 days of October 3rd,
[appellant’s] notice was timely under Rule 26.1(a). . . . Thus, he cannot prosecute
this matter as a restricted appeal, and given that his notice was timely, we treat the
appeal as we would any other normal, unrestricted appeal.”).
We conclude that this appeal does not qualify as a restricted appeal under
Rule 30, and the final judgment does not meet the $20 threshold permitting it to be
appealed as an unrestricted appeal under Code of Criminal Procedure article 44.22.
Therefore, we hold that this Court does not have jurisdiction over this appeal.
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Conclusion
We dismiss the appeal for lack of jurisdiction.5 All pending motions are
denied.
Richard Hightower
Justice
Panel consists of Justices Keyes, Hightower, and Countiss.
Do not publish. Tex. R. App. P. 47.2(b).
5
For the first time in in his reply brief, Admoren-Nweke asserts that articles 44.22
and 44.23 are unconstitutional as applied to him. The Texas Rules of Appellate
Procedure do not allow an appellant to include new issues in a reply brief that
were not raised by the appellant in his original brief. See TEX. R. APP. P. 38.3;
Barrios v. State, 27 S.W.3d 313, 321–22 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d). Therefore, we do not consider Admoren-Nweke’s as-applied
constitutional challenges to articles 44.22 and 44.23. See Barrios, 27 S.W.3d at
321–22.
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