The Judge called the case for trial. He =
asked if=20
the parties were ready. State said they were. Mr. Kubosh said he =
was. I,=20
at that time, then moved the Court to take judicial notice of the =
bond and=20
judgment Nisi and approached the Court with the two final=20
judgments.
<=
/SPAN>On=20
cross-examination, Kubosh asked the prosecutor if he made a =
correct=20
statement when he asked the trial court for a default judgment =
against=20
Kubosh. The prosecutor replied that he misspoke when he asked for =
a=20
default judgment gainst Kubosh and clarified that the State was =
requesting=20
a default judgment against Salinas, the second surety. On =
re-direct and=20
re-cross, the prosecutor clarified that the State was dismissing =
the=20
second surety and not seeking a default judgment.
<=
/SPAN>At=20
the conclusion of the hearing, the trial court stated that =
=E2=80=9C[t]he=20
paperwork, the service, the judgment Nisi, the bond forfeiture, =
the notice=20
had already been properly taken care of. State moved for judgment, =
and I=20
granted the same on that.=E2=80=9D The court went on to state: =
=E2=80=9CI think--I do=20
think to this day that [the prosecutor] did misspeak when he asked =
for a=20
default judgment.=E2=80=9D The trial court concluded by stating =
that it found that=20
the case was properly called and the State was and is entitled to =
judgment=20
on the bond forfeiture.
Discussion
<=
/SPAN>In two points of error, Kubosh argues =
that the=20
trial court erred in entering a judgment in favor of the State =
because the=20
evidence was insufficient and because the State moved for a =
default=20
judgment against Kubosh even though he had filed an answer and =
appeared.=20
<=
/SPAN>In=20
a bail bond forfeiture, the State has the burden of proof. =
Deckard v.=20
State, 605 S.W.2d 918, 921 (Tex. Crim. App. 1980). =
=E2=80=9CThe essential=20
elements of the State=E2=80=99s cause of action in a bond =
forfeiture proceeding=20
are the bond and the judicial declaration of the forfeiture of the =
bond,=20
which is the judgment nisi.=E2=80=9D Alvarez v. State, 861 =
S.W.2d 878,=20
880=E2=80=9381 (Tex. Crim. App. 1992). While the State is =
generally required to=20
present and offer both the bond and judgment nisi into evidence, =
the Court=20
of Criminal Appeals has held that a trial court may take judicial =
notice=20
of the judgment nisi. Hokr v. State, 545 S.W.2d 463, 466 =
(Tex.=20
Crim. App. 1977).
<=
/SPAN>Here,=20
while the record does not reflect whether or not the State asked =
the trial=20
court to take judicial notice of the bonds and judgments nisi, the =
supplemental reporter=E2=80=99s record reflects that the trial =
court took judicial=20
notice of the bonds and judgments nisi. Further, a trial court may =
take=20
judicial notice of its own file at any stage of proceedings and is =
presumed to have done so with or without a request from a party. =
Bob=20
Smith Bail Bonds, Sur. v. State, 963 S.W.2d 555, 556 (Tex. =
App.=E2=80=94Fort=20
Worth 1998, no pet.) (disagreeing with State=E2=80=99s concession =
that failure of the trial court to take =
judicial=20
notice of judgment nisi on the record amounted to insufficiency of =
evidence).
<=
/SPAN>In=20
McCluskey v. State, 64 S.W.3d 621 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
2001, no pet.), this Court considered a similar situation. In=20
McCluskey, the appellant argued that there was insufficient =
evidence to support the judgment because there was no hearing held =
and,=20
thus, no evidence presented to the court by the State. Id. =
at 623.=20
In overruling the point of error, we held that there was =
sufficient=20
evidence to uphold the judgment because the judgment nisi and bail =
bond=20
were contained in the trial court=E2=80=99s records and the final =
judgment recited=20
that the trial court had considered those documents. Id. at =
624=20
& n.3, (citing Holt Atherton Indus., Inc. v. Heine, 835 =
S.W.2d=20
80, 83 (Tex. 1992)) (holding that, because there was neither a =
reporter=E2=80=99s=20
record nor findings of fact and where the judgment recites that =
the trial=20
court considered =E2=80=9Cevidence,=E2=80=9D we presume the trial =
court admitted two=20
documents into evidence.); see Mackintosh v. State, 845 =
S.W.2d 361,=20
364 (Tex. App.=E2=80=94Houston [1st Dist.] 1992, no pet.) (holding =
that in a bond=20
forfeiture appeal, when there is no reporter=E2=80=99s record, and =
the appellate=20
record contains no court reporter=E2=80=99s certificate that no =
evidence was=20
admitted or that no reporter=E2=80=99s record was made, the court =
will presume the=20
evidence supports the judgment).
<=
/SPAN>Here, the copies of the bonds and the =
judgments=20
nisi are contained in the appellate records and both final =
judgments=20
stated that the trial court considered the pleadings and evidence. =
Therefore, we hold that the trial court did not err in finding =
sufficient=20
evidence to grant the final judgment of forfeiture. Accordingly, =
we=20
overrule Kubosh=E2=80=99s first point of error.
<=
/SPAN>Moreover,=20
we hold that Kubosh=E2=80=99s second point of error, in which he =
contends that the=20
trial court erred in granting the State=E2=80=99s default =
judgment, to be without=20
merit. Based upon the supplemental reporter=E2=80=99s record and =
the trial court=E2=80=99s=20
recollection of what occurred at the scire facias hearing, it is =
clear=20
that the prosecutor misspoke when he requested a default judgment =
against=20
Kubosh. Neither the clerk=E2=80=99s record nor the =
reporter=E2=80=99s record supports=20
Kubosh=E2=80=99s contention that the State intended to seek a =
default judgment=20
against him.
<=
/SPAN>Accordingly,=20
we overrule Kubosh=E2=80=99s second point of error.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court. =
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; George=20
C. Hanks, Jr.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Justice
Panel consists of =
Justices=20
Jennings, Hanks, and=20
Higley.