Opinion
No. 13-03-203-CV
Memorandum Opinion delivered and filed July 22, 2004.
On appeal from the County Court at Law No. 2 of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA.
MEMORANDUM OPINION
This is an appeal from a final judgment forfeiting a bail bond after entry of a judgment nisi. By two points of error, appellant and surety, Guy Williams d/b/a Freedom Bail Bonds, complains the trial court erred (1) in admitting the bail bond into evidence and (2) in signing a final judgment which did not dispose of all parties. We affirm.
I. Facts
Because all issues of law are settled, our opinion only advises the parties of the Court's decision and the basic reasons for it. See Tex.R.App.P. 47.4.
II. Analysis
"In bail bond forfeiture trials, the State has the burden of proof." Williams v. State, 82 S.W.3d 788, 790 (Tex. App.-Corpus 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 Williams, finding no authority that allows a trial court to take judicial notice of a bond in a bail bond forfeiture proceeding where the bond has been placed at issue, we concluded "the State must offer into evidence the original bail bond in order to be entitled to a final judgment." Id. (citing Hester v. State, 15 Tex. Ct. App. 418, 419-20 (1884), overruled in part by Hokr, 545 S.W.2d at 466).
A. Bail Bond
By verified pleading, appellant specifically denied that neither he nor Arthur Martinez, the principal, signed the bail bond. Because appellant put the bail bond at issue, the State was required to present the bond at trial and offer it into evidence. During the trial on the judgment nisi, the State asked the court to take judicial notice of the judgment nisi. The State then offered a certified copy of the bond into evidence. Appellant objected to the admission of the bond on the basis that: (1) the bond is not a public document; (2) there was no authentication or proper predicate laid; (3) the bond was not proven up under article 17.08 of the Texas Code of Criminal Procedure; and (4) it is hearsay. Over objection, the trial court admitted the certified copy of the bond.
By his first point of error, appellant again asserts the bail bond is inadmissible under article 17.08 of the code of criminal procedure and the rules of evidence regarding authentication and hearsay. See Tex. R. Evid. 902 803. Appellant claims that the bail bond is inadmissible because no foundation was laid to show that the bond was a public record, and, therefore, there was insufficient evidence to enter a final judgment against him.
The bail bond in question was signed by a deputy and taken and approved by the Nueces County Sheriff, in his official capacity. In its heading, the bond bears the words "The State of Texas." The bond was filed of record with the Nueces County District Clerk on March 26, 2001. The document introduced into evidence was a certified copy of the original bond that had been filed with the district clerk.
Texas Rule of Evidence 1005 which pertains to public records provides that:
The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original.
Tex. R. Evid. 1005; see Hutchins v. State, 650 S.W.2d 412, 414 (Tex.Crim.App. 1983) (bail bond properly admitted as public record). Extrinsic evidence of authenticity is not a condition precedent to the admissibility of a public record. Tex. R. Evid. 902; Int'l Fid. Ins. Co. v. State, 65 S.W.3d 724, 727 (Tex. App.-El Paso 2001, no pet.). Certified copies of public records are self-authenticating. Int'l Fid., 65 S.W.3d at 727 (citing Tex. R. Evid. 902(4) (certified copy of bail bondsman's bond filed in principal's court file was self-authenticating under rule 902(4)). Therefore, pursuant to rule 1005, a copy of a public record, in this case the bail bond, "will be admissible in place of an original where the copy is certified in accordance with Rule 902." Id. (citing Reed v. State, 811 S.W.2d 582, 585 n. 11 (Tex.Crim.App. 1991) (opinion on State's motion for rehearing)).
During the trial on the judgment nisi, the State offered a certified copy of the bail bond as evidence. The trial court heard appellant's objections. After examining the certified copy of the bail bond, the court overruled the objections and admitted it into evidence. Because the certified copy of the bail bond is a self-authenticated public record, no further authentication was required. Additionally, appellant's hearsay objection fails because a public record falls under the hearsay exception. See Tex. R. Evid. 803(8). We, thus, conclude the State met its burden. The evidence was sufficient to show the existence of a valid bond that supported the entry of a final judgment against appellant. We overrule appellant's first point of error.
B. Service on Principal
By his second point of error, appellant generally contends the trial court erred in signing a final judgment which did not dispose of all parties because the principal in this case was not served with citation. However, appellant did not present this argument to the trial court. Accordingly, he has waived this issue. See Tex.R.App.P. 33.1(a) (as prerequisite to presenting complaint for appellate review, record must show complaint was made to trial court). We overrule appellant's second point of error.
C. Sanctions
In a single cross-point, the State asks us to award sanctions pursuant to appellate rule 45 on the grounds that this appeal is frivolous. Tex.R.App.P. 45. Under rule 45, we may award just damages if we objectively determine, after considering the record, briefs, or other papers filed with the court, that an appeal is frivolous. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). To determine whether an appeal is frivolous, we look at the record from the viewpoint of the advocate and decide whether he had reasonable grounds to believe the case could be reversed. Id. As addressed above, appellant asserted a number of bases which he claimed made the bail bond inadmissible as evidence. We cannot conclude from the record before us that appellant had no reasonable ground to believe that the trial court's judgment could be reversed. We overrule the State's cross-point for sanctions.
III. Conclusion
Accordingly, we affirm the trial court's judgment.