Richard Merrill McCarter DBA Merill Bail Bonds v. State
442 S.W.3d 655
| Tex. App. | 2014Background
- Appellant Merrill, a surety, posted a bond for principal Rafael Lopez in a probation revocation proceeding.
- Lopez failed to appear and the trial court entered a judgment nisi on April 3, 2012 (forfeiture preliminarily declared).
- Merrill filed an answer seeking exoneration or, alternatively, remittitur if the State dismissed the case.
- Lopez died on October 5, 2012, after the judgment nisi but before final judgment; the State later dismissed the motion to revoke probation.
- Trial court denied exoneration (because death occurred after the judgment nisi), entered a final forfeiture judgment assessing costs, and held the principal and surety jointly and severally liable.
- Merrill appealed, challenging the denial of exoneration and arguing mandatory remittitur under Tex. Code Crim. Proc. art. 22.16(a) because the State dismissed the case following Lopez’s death.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Merrill) | Held |
|---|---|---|---|
| Whether surety is exonerated after principal’s death that occurs after judgment nisi | Exoneration unavailable because death occurred after judgment nisi; forfeiture already taken | Death entitles surety to exoneration despite timing | Court: No exoneration; Hernden controls — death after judgment nisi does not exonerate surety |
| Whether dismissal of the State’s motion to revoke triggers mandatory remittitur under art. 22.16(a) | Dismissal was of a motion, not the underlying case; art. 22.16(a) applies only when the case is dismissed | Dismissal of the action (motion) prior to final judgment triggers mandatory remittitur; death irrelevant | Court: Did not resolve statutory scope; assuming remittitur could apply, court affirmed because record (absent reporter’s record) supports implicit denial of remittitur based on costs exceeding bond |
| Effect of appellant’s failure to provide reporter’s record and briefing defects | N/A (procedural point raised by State) | Argued merits regardless | Court: Noted briefing defects but deemed sufficient; absent reporter’s record, presumes evidence supported trial court and affirms judgment |
Key Cases Cited
- Kubosh v. State, 241 S.W.3d 60 (Tex. Crim. App. 2007) (State bears burden to prove bond forfeiture)
- Alvarez v. State, 861 S.W.2d 878 (Tex. Crim. App. 1992) (judgment nisi is prima facie proof that statutory requirements for forfeiture are satisfied)
- Safety Nat’l Cas. Corp. v. State, 273 S.W.3d 157 (Tex. Crim. App. 2008) (judgment nisi is provisional and remains valid unless shown otherwise)
- Hernden v. State, 505 S.W.2d 546 (Tex. Crim. App. 1974) (principal’s death after judgment nisi does not exonerate the surety)
- Spears v. State, 381 S.W.3d 667 (Tex. App.—Eastland 2012) (discusses burdens and defenses after judgment nisi)
- In re B.R.G., 37 S.W.3d 542 (Tex. App.—El Paso 2001) (absence of reporter’s record permits presumption that omitted evidence supports the trial court)