Opinion
08-22-00017-CR
01-31-2023
MARCO DEMON PARKS, Appellant, v. THE STATE OF TEXAS, Appellee.
Do Not Publish
Appeal from the 77th Judicial District Court of Limestone County, Texas (TC# 15289-A)
Before Rodriguez, C.J., Soto, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.) (Sitting by Assignment)
MEMORANDUM OPINION
YVONNE T. RODRIGUEZ, Chief Justice
Appellant, Marco Demon Parks, appeals his conviction for bail jumping and failure to appear. See Tex.Penal Code Ann. § 38.10. In a single issue, Appellant challenges the legal sufficiency of the evidence to show he intentionally or knowingly failed to appear, such that the State failed to prove the required culpable mental state. We affirm.
This case was transferred from our sister court in Waco (10th District), and we decide it in accordance with the precedent of that court to the extent required by Tex.R.App.P. 41.3.
BACKGROUND
Appellant was charged with possession of a controlled substance and tampering with evidence. It is undisputed Appellant posted two felony bonds via Freebird Bail Bonds requiring him to appear "instanter" at the 77th District Court of Limestone County, Texas. He failed to appear at a June 4, 2021, status hearing. Appellant's trial defense was he did not receive notice of the June 4, 2021, hearing.
"Instanter" is defined as follows:
Instantly; at once. Black's Law Dictionary (11th ed. 2019).
At trial the evidence showed Appellant lacked a steady or reliable means of communication. He did not have a telephone number where he could be reached and instead communicated with his attorney using either a Facebook Messenger or a wi-fi capable cell phone. Appellant's attorney at the time, Justin Reed, testified to corroborating Facebook Messenger records that showed Reed had previously communicated with Appellant via Facebook Messenger. Similarly, despite Appellant's reduced means of communication, after his bond release, Appellant appeared at a March 5, 2021 and an April 1, 2021 hearing (via Zoom and in person, respectively). Further, the evidence showed the court coordinator also mailed notices of the hearings to 206 Elm Street, Malone, Texas, the address provided by Appellant.
Prior, while attending court in person, Appellant signed a written notice for his next hearing. Because his case was passed over for trial on the last setting in April 2021, he did not have to appear in court. As a result, Appellant did not receive or sign written notice of the upcoming June 4, 2021, hearing.
Sheriff Sergeant, Nancy Costilla, who processed Appellant's bond, testified when completing the bond paperwork, her standard practice is to instruct defendants to provide an address to receive mail from the court. Freebird Bail Bonds Manager Cynthia Bever testified, it was her office's standard practice to instruct clients on the terms of their bond, obtain a current address, send notice of all hearings to that address. Further, they require clients to call in every Monday, at which point Freebird would remind them of any court hearings for the week. In addition, Freebird called clients to notify them of any court hearings, first upon Freebird's receipt of the court's mailed notice of hearing, and again a day or two before the court date.
Although Bever could not personally attest to any phone calls made to Appellant pertaining to the June 4 hearing, she indicated he would have been called pursuant to her office's standard practice.
Regarding the court's hearing-notification procedures, Court Coordinator Amber Sandell testified she mails notices of hearing to the defendant, the defendant's attorney, and the bond company. If the defendant is out on bond, Sandell sends the notice to the address indicated on the bond. The notices are sent via regular mail. Reed likewise testified Sandell normally sends notice of a hearing to him, to his client at the address noted on the bond, and to the bonding company. Appellant's court notices show his address as 206 Elm Street. Those notices were the March 5 and April 1, 2021, hearings to which Appellant appeared. The June 4, 2021 hearing for which Appellant failed to appear was also sent to the Elm Street address. Sandell testified none of the notices (which corresponded to hearing dates from August 2019 through June 2021) were returned undeliverable. If so, a copy of the returned letter would be placed in the court's file. However, the court's file did not contain any returned letters. Nor did Appellant or his attorney ever change or update Appellant's previously designated address with the court.
Finally, Reed testified the day Appellant failed to appear, Reed received a call from his office that Appellant called stating he could not make it to court. Reed stated someone from the District Attorney's office went into court to advise him Appellant had called their office asking to speak with Reed. Facebook Messenger records showed Reed sent a message to Appellant on June 2, 2021, reminding him to attend court on June 4, 2021, although Appellant did not respond.Reed communicated with Appellant a week or so later, when Appellant called Reed's office. Appellant was concerned he had a warrant for failure to appear and asked if the warrant could be recalled. Later, Reed learned Appellant had been attempting to contact him via a second Facebook Messenger profile, never previously used by Reed to communicate with Appellant. Appellant used this second profile to send Reed a message saying, "Hey," at roughly 11:00 a.m. on June 4, 2021, some two hours after he was due to appear in court. Appellant did not testify or present other evidence to show he did not receive notice of the missed hearing.
Appellant had not responded to Reed's message via Facebook Messenger regarding the April 1, 2021, court hearing either, and yet, it was undisputed that Appellant made that court date.
The jury returned a guilty verdict and, following Appellant's plea of "true" to the various enhancement and habitualization allegations, assessed punishment at ninety-nine years' confinement. This appeal followed.
DISCUSSION
The standard for reviewing a legal-sufficiency challenge is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). A person commits the offense of bail jumping and failure to appear when, after being lawfully released from custody on the condition that he subsequently appear, intentionally or knowingly fails to appear in accordance with the terms of his release. See Tex.Penal Code Ann. § 38.10(a). It is a defense to prosecution that the actor had a reasonable excuse for his failure to appear. See Tex.Penal Code Ann. § 38.10(b).
It is uncontroverted that he failed to appear in accordance with his bond on June 4, 2021. However, Appellant complains the evidence is legally insufficient because the State failed to show he had actual notice of that hearing. But as the State points out, the prosecution is not generally required to prove actual notice. Indeed, Appellant agrees proof of a defendant's release on an instanter bond constitutes a prima facie showing of notice of the missed proceeding, and further acknowledges such showing is sufficient to satisfy the State's burden of proving a culpable mental state in the absence of evidence to the contrary. See Euziere v. State, 648 S.W.2d 700, 702 (Tex.Crim.App. 1983); Richardson v. State, 699 S.W.2d 235, 238 (Tex.App.-Austin 1985, pet. ref'd).
While he acknowledges this rule, citing Richardson, 699 S.W.2d at 238, Appellant urges "actual notice is the required method under this State's case law." However, Richardson-a case where Appellant presented evidence that he did not receive notice of the missed proceeding-does not require proof of actual notice in a case where Appellant fails to present affirmative evidence to contradict the prima facie showing of notice supplied by proof of his release under an instanter bond. See Richardson, 699 S.W.2d at 237 (explaining that under Euziere, 648 S.W.2d at 702, although release under instanter bond was sufficient to satisfy State's burden to prove appellant intentionally or knowingly failed to appear, evidence showing appellant did not, in fact, have notice of missed proceeding was evidence of reasonable excuse which, in turn, required State to prove actual notice or course of conduct designed to prevent receipt of notice).
That is, it is not unless and until evidence is introduced to show the defendant did not, in fact, have notice the State is required to show the defendant either (1) had actual notice or (2) engaged in a course of conduct designed to prevent him from receiving notice. See Richardson, 699 S.W.2d at 238; see also Bell v. State, 63 S.W.3d 529, 531-32 (Tex.App.-Texarkana 2001, pet. ref'd); Solomon v. State, 999 S.W.2d 35, 37-38 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The flaw in Appellant's argument lies in his assertion there is evidence in the record showing he did not receive notice of the hearing, thus triggering the State's duty to prove actual notice. Appellant grounds this contention on the fact that none of the witnesses could testify whether he ever received the letters or the Facebook message notifying him of the hearing. However, this does not constitute evidence he did not receive notice. See Solomon, 999 S.W.2d at 37-38 (the fact that court coordinator could not testify whether appellant received notice and that his attorney's notice letter was returned unopened did not constitute evidence that appellant did not receive notice of the missed hearing such that proof of his release pursuant to instanter bond was sufficient to prove culpable mental state for bail jumping). In other words, a lack of direct evidence showing Appellant actually received notice does not constitute affirmative evidence of the contrary, that he did not receive evidence. The State is not required to prove actual notice. See Euziere, 648 S.W.2d at 702; Solomon, 999 S.W.2d at 37-38; Richardson, 699 S.W.2d at 237.
Here, the bonds requiring Appellant to appear instanter at the 77th District Court of Limestone County, Texas, is sufficient to prove the required culpable mental state in the absence of evidence that Appellant did not receive notice. In addition, Sandell, Bever, and Reed testified Appellant was notified of the hearing by various means to include Facebook Messenger, a letter notice from the court, and the bonding company's letter notice and reminder telephone call. The letter notice of the missed hearing was admitted at trial, along with the prior hearings in which Appellant appeared. Each letter notice was sent to the same address. More importantly, on the day of the missed hearing, Appellant contacted Reed's office explaining he was unable to attend court.
The evidence is legally sufficient to show Appellant received notice and that he intentionally and knowingly failed to appear at the June 4, 2021, hearing. See Euziere, 648 S.W.2d at 702; Solomon, 999 S.W.2d at 37-38; Richardson, 699 S.W.2d at 237. Accordingly, we overrule Appellant's sole appellate issue.
CONCLUSION
Having overruled Appellant's sole issue, we affirm.