Tom Benson v. State
03-15-00121-CR
| Tex. App. | May 6, 2015Background
- On Aug 29, 2013 Brian Roy Whipple (principal) posted a $5,000 misdemeanor bond with Tom Benson as surety. Whipple failed to appear Feb 14, 2014; a judgment nisi was entered and the State moved for forfeiture.
- The State moved for summary judgment seeking the bond penal sum plus costs; the trial court granted the State’s motion and entered final judgment on Jan 21, 2015 for $5,000 plus costs.
- Benson (surety) answered pro se, asserted a general denial and invoked the statutory affirmative defense in Tex. Code Crim. Proc. art. 22.13(a)(5)(A): exoneration if the principal is incarcerated in any U.S. jurisdiction within 180 days after failing to appear (misdemeanor).
- Benson produced summary-judgment evidence: a Clark County (Nevada) sheriff’s incarceration verification stating Whipple was incarcerated June 29, 2014; the judgment nisi showing the Feb 14, 2014 failure to appear; and requests for judicial notice that Nevada is a U.S. jurisdiction and that the interval between those dates is under 180 days.
- The State presented certified copies of the bond and judgment nisi but did not reply to Benson’s summary-judgment response; the trial court nevertheless granted the State’s motion. Benson appealed, arguing the trial court erred because his evidence raised fact issues on the statutory affirmative defense and thus summary judgment for the State was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State established entitlement to summary judgment on forfeiture | State produced certified bond and judgment nisi establishing prima facie forfeiture | Benson contends those documents are insufficient because art. 22.13(a)(5)(A) exonerates surety if principal incarcerated within 180 days and he produced evidence of such incarceration | Trial court granted State’s motion (trial judgment for forfeiture) — issue on appeal is whether that grant was erroneous given Benson’s evidence |
| Whether Benson’s summary evidence raised a fact issue on the art. 22.13(a)(5) affirmative defense | State argued its prima facie case shifted burden to surety to prove any exonerating cause | Benson produced incarceration verification and asked for judicial notice of dates and jurisdiction; argued this meets every element and creates at least an evidentiary fact issue (name/DOB match except middle name) | Benson argues (and appeals court must review de novo) that his evidence created a fact issue; trial court nonetheless resolved for State — appellate review examines whether that was error |
| Whether the identity link between the incarcerated person and the principal is sufficiently established for summary judgment | State relied on formal bond and judgment nisi; did not rebut Benson’s incarceration proof | Benson relies on matching name and DOB in incarceration verification plus inference in his favor on summary judgment | The parties dispute identity; Benson asserts this unresolved inference precludes summary judgment — the trial court did not treat it that way |
| Proper relief if art. 22.13(a)(5) is proved | State seeks full penal sum and costs | Benson contends art. 22.13(b) limits recovery to costs, reasonable return expenses, and interest from judgment nisi to incarceration date if the affirmative defense is proved | If on remand the affirmative defense is proved, surety would be exonerated from the penal sum and State limited to costs/expenses/interest as provided in art. 22.13(b) |
Key Cases Cited
- Alvarez v. State, 861 S.W.2d 878 (Tex. Crim. App. 1992) (summary-judgment procedure in bond forfeiture; State must present prima facie case)
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (de novo review of summary judgment)
- Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) (summary judgment burdens and resolving doubts against movant)
- Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002) (summary judgment burden on movant; resolve doubts against movant)
- Nichols v. Smith, 507 S.W.2d 518 (Tex. 1974) (when defendant pleads affirmative defense in response to summary judgment, must present proof on each element)
- Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. 1965) (evidence favorable to nonmovant must be accepted; uncontroverted evidence may support judgment)