author: Opinion by Justice DORSEY.

text:
    THE SAN BENITO BANK & TRUST COMPANY and Johnson & Davis, L.L.P., Appellants, v. LANDAIR TRAVELS, et al., Appellees.
    No. 13-96-337-CV.
    Court of Appeals of Texas, Corpus Christi.
    Aug. 24, 2000.

      Edwin R. Fleuriet, Fleuriet, Schell & Phillips, Harlingen, Orrin Johnson, Harlin-gen, for Appellants.
    Hugh P. Touchy, Charles Willette, Jr., Willette, Guerra & Trevino, Brownsville, Leo C. Salzman, Roger W. Hughes, Adams & Graham, Harlingen, for Appellees.
    Before Justices DORSEY, YÁÑEZ, and RODRIGUEZ.
   OPINION

Opinion by Justice DORSEY.

The issue in this case is whether a crime victim may be held liable in negligence for failing to report and prosecute a crime by a person subsequently victimized by the same criminal. Carlos Cascos, a certified public accountant, hired Debbie Pena to work for him as a bookkeeper. Pena embezzled $78,000.00 from an account belonging to one of Cascos’ clients, Landair. Landair discovered the embezzlement and reported it to Cascos. Cascos confronted Debbie Pena, and she admitted to him, in writing, to embezzling the money.

Rather than reporting the embezzlement to the authorities, Mr. Cascos attempted to work out an agreement between Landair and Pena whereby Landair would get its money back and Pena would not go to jail. He hired an attorney, Rene Oliveira, to help. He also paid $30,000.00 of his own money to Landair, and promised to pay the rest. Both Cascos and Oliveira actively tried to keep Landair from reporting Debbie Pena’s crimes or pressing criminal charges against her.

Less than a week after her embezzlement from Landair was confirmed, Pena— now unemployed — applied for a job as a bookkeeper at the law firm of Johnson & Davis, L.L.P. Pena, of course, told Johnson & Davis nothing about her recent legal problems. The firm hired Pena, and within a week she forged a check on the law firm’s trust account which she converted into a $75,000.00 cashier’s check payable to Landair. She made those transactions at San Benito Bank & Trust.

Pena sent the $75,000.00 cashier’s check to Mr. Cascos, who turned it over to his lawyer, Oliveira. Neither of them knew that the check had been stolen from Johnson & Davis. Oliveira continued negotiating with Landair, who was inclined to press charges against Pena, to accept the money and forego the criminal prosecution. After around two months of negotiating, Landair “settled” with Pena. The original agreement was that Landair would get the $75,000.00 and Pena would be charged only with a misdemeanor. Apparently, an assistant district attorney refused to prosecute a misdemeanor against Pena over such a large sum, and ultimately, the entire matter blew over and Pena was never charged.

During the time Cascos and Oliveira were negotiating with Landair to avoid Pena’s being prosecuted, Pena misappropriated around $20,000.00 more from Johnson & Davis. She was finally arrested for attempting to pass yet another forged law firm check a few months after the final settlement with Landair. The bank paid the law firm for the $75,000.00 check, and is subrogated to the firm for that amount. The bank and the law firm (collectively “Johnson & Davis”) have brought the present suit against Cascos and Oliveira for negligently failing to report Pena’s embezzlement of the Landair funds.

Their theory is that Cascos’ and Oli-veira’s breach of their duty to report Pena’s embezzlement proximately caused them to lose the money Pena embezzled from them. They argue that a duty to report exists both under statutory and common law. They also complain that Cascos and Oliveira were negligent in failing to warn the firm about Pena. They sued Cascos and Oliveira for negligence, negligence per se, and gross negligence. Defendants specially excepted to plaintiffs’ causes of action, claiming that no cause of action will he under these facts. After allowing the plaintiffs to amend several times, the trial court dismissed their causes of action against Cascos and Oli-veira. Appellants, the law firm and the bank, bring this appeal challenging the trial court’s dismissal.

Standard of Review

Although special exceptions are generally considered to be the means by which an adverse party may force clarification of vague pleadings, they may also be used to determine whether the plaintiff has pled a cause of action permitted by law. See Tex.R.Civ. P. 91; Trevino v. Ortega, 969 S.W.2d 950-51 (Tex.1998) (special exceptions used to determine no cause of action for spoliation of evidence); Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998); Holt v. Reproductive Servs., Inc., 946 S.W.2d 602, 607 (TexApp.—Corpus Christi 1997, writ denied). The court must allow an opportunity to amend; however, if a party refuses to amend, or the amended pleading fails to state a cause of action, the case may be dismissed. Friesenhahn, 960 S.W.2d at 658. The appellate court reviews such a ruling de novo, taking all allegations, facts, and inferences in the pleadings as true and viewing them in a light most favorable to the pleader. Perry v. S.N., 973 S.W.2d 301, 303 (Tex.1998); Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex.App.—Fort Worth 1996, writ denied); Detenbeck v. Koester, 886 S.W.2d 477, 479 (Tex.App.—Houston [1st Dist.] 1994, no writ). The question becomes whether, even assuming plaintiff can prove all the allegations contained in his petition, a cause of action is recognized under Texas law.

Common-Law Negligence

We first address plaintiffs’ causes of action for negligence. The elements of a negligence cause of action are: (1) a legal duty; (2) breach of that duty; and (3) damages proximately resulting from the breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998); Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998). The plaintiff must prove the existence and violation of a duty owed to him by the defendant. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). A duty is a legally enforceable obligation to conform to a particular standard of conduct. Valley Shamrock, Inc. v. Vasquez, 995 S.W.2d 302, 306 (Tex.App.—Corpus Christi 1999, no pet). The existence of a duty -is a threshold question of law that courts determine from examining the facts surrounding the occurrence in question. Accord Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998). If no duty exists, there can be no negligence. Van Horn, 970 S.W.2d at 544; Graff v. Beard, 858 S.W.2d 918, 919 (Tex.1993). In this case, Johnson & Davis must show that Cascos and Oliveira owed a duty to take some affirmative action to protect it from Debbie Pena’s potential criminal activity.

The general rule is that a person has no legal duty to protect another from the criminal acts of a third person. Timberwalk Apartments, 972 S.W.2d at 756; Gonzalez v. South Dallas Club, 951 S.W.2d 72, 76 (Tex.App.—Corpus Christi 1997, no writ). Even if he has the practical ability to exercise such control, a person is generally under no duty to control the conduct of another. Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983); Restatement (Second) of Tokts § 315 (1965). However, the general rule of “no duty” is not absolute. Butcher v. Scott, 906 S.W.2d 14, 15 (Tex.1995); Plowman v. Glen Willows Apartments, 978 S.W.2d 612, 614 (Tex.App.—Corpus Christi 1998, review denied); see e.g., Cain v. Cain, 870 S.W.2d 676, 680-81 (Tex.App.—Houston [1st Dist.] 1994, writ denied) (holding head of household had a duty to prevent the sexual assault of niece by another adult male occupying the house when the sexual assault was the foreseeable result of his negligence); Gutierrez v. Scripps-Howard, 823 S.W.2d 696, 699 (Tex.App.—El Paso 1992, writ denied) (holding that publication owed duty to warn of dangers to freelance photographer assigned to hotel owned by man newspaper had previously identified as a drug czar).

One exception is made for cases involving premises liability. One who controls a premises has a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee. Timberwalk, 972 S.W.2d at 756. The duty to provide protection arises from the defendant’s power of control or expulsion that his occupation of the premises gives him over the conduct of a third person who may be present. Plowman, 978 S.W.2d at 614. The Texas Supreme Court has emphasized that the scope of this duty is commensurate with the landowner’s right of control over the property. Lefmark, 946 S.W.2d at 54; Gonzalez, 951 S.W.2d at 76. Clearly, neither Cascos or Oliveira exercised any “control” over Pena once she left Cascos’ employ that would trigger a duty under the rationale of the premises liability line of cases.

Even in premises cases, where a duty is presumed, plaintiffs must offer evidence showing specific previous crimes committed on or near the premises to establish foreseeability sufficient to impose a duty on the landowner. Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 656-58 (Tex.1999); Timberwalk, 972 S.W.2d at 756. In determining foreseeability in the premises line of cases, courts consider the factors of proximity, recency, frequency, similarity, and publicity of the previous crimes. Timberwalk, 972 S.W.2d at 759. Under Tim-berwalk, foreseeability depends on how often criminal conduct has occurred in the past. Timberwalk, 972 S.W.2d at 757-58. While the occurrence of a significant number of crimes within a short time period strengthens the claim that the particular crime at issue was foreseeable, the complete absence of previous crimes, or the occurrence of a few crimes over an extended time period, negates foreseeability. Id.

We do not believe that Johnson & Davis has made a showing of foreseeability under Timberwalk. Johnson & Davis do not allege that Cascos or Oliveira knew anything more about Pena’s criminal history than that she embezzled from Cascos. They do not allege that Cascos or Oliveira made any affirmative misrepresentations to them. They do not claim that they contacted Cascos to cheek Pena’s reference and Cascos misrepresented or failed to disclose anything. They also do not claim that Cascos or Oliveira knew anything about Pena’s embezzlement from the law firm. Their bare claim is that in actively lobbying Landair, Cascos’ client, to forego reporting and prosecuting Pena, Cascos and Oliveira should have known that Debbie Pena would steal from a future employer.

On the contrary, because a person steals from one employer, it is not foreseeable that she will steal from the next. Debbie Pena was caught embezzling from Cascos, and so far as he and Oliveira knew, she returned the money. It seems as reasonable to believe that Pena would have learned from this mistake — especially while she was still in a precarious legal predicament — as to believe that she would further imperil her freedom by stealing again from another employer. Thus, even applying the Timberwalk factors, Johnson & Davis have not shown that Pena’s crimes against them were foreseeable by Cascos or Oliveira.

Another exception to the general rule of no duty is when a special relationship exists between the actor and the third person that imposes a duty upon the actor to control the third person’s conduct. Greater Houston, 801 S.W.2d at 525; Otis Engineering, 668 S.W.2d at 311. These relationships have been found to exist between employer and employee, parent and child, and independent contractor and contractee under special circumstances. See, e.g., Read v. Scott Fetzer Co., 990 S.W.2d 732, 735-36 (Tex.1998) (vacuum cleaner manufacturer owed duty to woman raped by door-to-door salesman); Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex.1995); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); but see, e.g., Van Horn v. Chambers, 970 S.W.2d 542, 546 (Tex.1998) (does not apply to physician-patient relationship); Villacana v. Campbell, 929 S.W.2d 69, 75-76 (Tex.App.—Corpus Christi 1996, writ denied) (does not apply to parents of adult son living at home); Wofford v. Blomquist, 865 S.W.2d 612, 614-615 (Tex.App.—Corpus Christi 1993, writ denied) (does not apply to grandparents). However, we have discovered no case which holds that a former employer has this relationship with his former employee. Even a present employer is not obligated to control the off-duty tortious conduct of its employees. See Restatement (Second) of ToRts § 317, comment b. Again, control is the critical factor. We certainly do not believe that the “perpetrator-crime victim” relationship is the type of relationship that would trigger a duty for the victim to control the perpetrator’s future conduct.

Another doctrine has been recognized by Texas courts that guides us in deciding this case. If a party creates a dangerous situation, a duty is imposed upon him to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured by the dangerous situation he created. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex.1995); Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (1942). This analysis focuses on the actor’s creation of the dangerous condition.

In Buchanan v. Rose, a truck driver drove his track over a bridge causing the bridge to collapse, though the driver of the truck was not negligent. Another driver stopped the truck driver, told him the bridge had collapsed and that he ought to put some warning signs up. Id. The truck driver said he did not have time to place any warning signs, and indeed, did not place any warnings. Id. Six days later, the Buchanans ran onto the broken bridge and, without any negligence on their part, Mrs. Buchanan was severely injured. Id. A jury found that the truck driver was negligent, and the trial court rendered judgment for the plaintiffs. Id.

The court stated:
It is a well-understood rule that negligence is the doing of that which an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do that which an ordinarily prudent person would have done under the same or similar circumstances. Here we are not concerned with any supposed negligence on the part of the defendant in doing something which he should not have done, for it is conceded that he was not negligent in breaking the bridge down. If the driver of the truck was negligent at all, it was because of his failure to do something-to give warning of the broken bridge. Before we can determine whether he was negligent in failing to give warning, we must first decide whether he owed the legal duty to do so.
There are many instances in which it may be said, as a matter of law, that there is a duty to do something, and in others it may be said, as a matter of law, that there is no such duty. Using familiar illustrations, it may be said generally, on the one hand, that if a party negligently creates a dangerous situation it then becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby. On the other hand, it may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others. Under the last rule, a bystander may watch a blind man or a child walk over a precipice, and yet he is not required to give warning. He may stand on the bank of a stream and see a man drowning, and although he holds in his hand a rope that could be used to rescue the man, yet he is not required to give assistance. He may owe a moral duty to warn the blind man or to assist the drowning man, but being a mere bystander, and in nowise responsible for the dangerous situation, he owes no legal duty to render assistance.
We think it may also be said that if one by his own acts, although without negligence on his part, creates a dangerous situation in or along a public way and it reasonably appears that another in the lawful use of such way in the exercise of ordinary care for his own safety may be injured by the dangerous situation so created, the one creating the same must give warning of the danger or be responsible for the consequences. To illustrate: One who in the exercise of a lawful right, and without negligence on his part, makes an excavation across a street or sidewalk or on his premises in close proximity to a public way, or parks a vehicle in a road, or otherwise obstructs the road with a foreign substance, is bound to give warning of the danger created thereby.
Likewise, it has been held that one who, without negligence, strikes a trolley pole with his automobile and causes it to fall across the road is liable for failure to protect others from injury thereby.
It will be noted, however, that in each of the above instances the defendant by his own act created the dangerous situation. In the case at bar, it is hardly fair to say that the defendant’s agent created the dangerous situation. The bridge was already in a defective condition. It was insufficient in strength to carry a normal load. It merely gave way as the result of the usual and legitimate use of the road. It fell as a result of its own inherent defects. Defendant was merely the victim of a defective condition that already existed. It would be carrying the matter too far to say that one must give notice of every known defect in a road naturally resulting from his normal and legitimate use thereof. To so hold would make the use of the highways too hazardous from the standpoint of public liability.

Id. at 110-11. Ultimately, the court held that because the driver did not create the dangerous condition, he had no duty to warn the public of it. Id.

We find the reasoning in Buchanan applies equally in the case at bar, and perhaps, best explains why Cascos and Oliveira owed no duty to Johnson & Davis. In this case, like Buchanan, we find that defendants were merely “the victims of a defective condition that already existed.” No negligence on the part of Cascos caused Pena to embezzle from him. While plaintiffs have thrown about allegations that Cascos was negligent in supervising Pena, we are unconvinced that any amount of negligence on his part could have caused her to steal from him were she not already so inclined.

The question next becomes, does Cascos owe any duty to the general public to protect it from Pena’s potential criminal conduct or to warn it about Pena. We believe the answer to this question is no. See also Penn/, 973 S.W.2d at 308-09 (refusing to find a common law duty to report child abuse). Whether or not it was foreseeable that failing to report Pena’s crime would result in her stealing again, Cascos had no duty to the public — under tort law — to do anything to protect against Pena’s future conduct. Certainly, it was less foreseeable that Pena would steal from another employer than that someone would be injured crossing the broken bridge in Buchanan. Moreover, the truck driver in Buchanan “caused” the breaking of the bridge much more than Cascos can be said to have “caused” Pena’s criminal conduct. The experience of becoming a crime victim cannot carry with it a duty to protect against the future tortious conduct of the criminal. Cascos is more like a bystander, who though he may be morally obligated to warn about Pena’s criminal propensities, is not liable in tort for any failure to warn or control Pena’s future conduct by reporting her crime to the authorities. See id.; Ford Motor Co. v. Dallas Power & Light Co., 499 F.2d 400, 412 n. 20 (5th Cir.1974).

Having determined that this case does not fall under a recognized exception to the general rule of no duty, we look to the factors considered in determining whether a new common law duty should be created, i.e., (1) social, economic, and political questions and their application to the facts at hand; (2) the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant; and (3) whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm. Praesel, 967 S.W.2d at 397-98 (citing to factors from Graff, 858 S.W.2d at 920, Greater- Houston, 801 S.W.2d at 525, and Otis Engineering, 668 S.W.2d at 309). Applying the facts of this case to these factors, we find that Cascos and Oliveira owed no legal duty to Johnson & Davis. Creation of this duty could have obvious far-reaching and undesirable consequences. A private citizen should be free to handle the experience of being victimized by a criminal without incurring tort liability to any future victims of that criminal. To hold a private citizen liable' for the actions of a criminal who victimized him or her in the past would make the citizen twice a victim. The criminal alone is responsible for his conduct, and we find no social utility whatever of imposing any duty upon a victim to ensure the safety of potential future victims. We overrule appellants’ first points of .error.

Negligence Per Se

Appellants’ second cause of action is for negligence per se. Appellants point to several federal and state statutes relating to reporting of crime, tampering with witnesses, and hindering prosecution to find a statutory duty they contend forms the basis of a negligence per se cause of action. We disagree. The Texas Supreme Court recently addressed a similar issue in Perry v. S.N., 973 S.W.2d 301 (Tex.1998). In Perry, a group of parents brought a negligence per se action against the friends of day care providers for failing to report child abuse that they allegedly witnessed at the day-care center. Id. They based this action on the defendants’ violation of a family code statute which requires reporting of suspected child abuse. Id. at 302-304. The court held that violation of the child abuse reporting statute was not negligence per se.

“The threshold questions in every negligence per se case are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiffs injury is of a type that the statute was designed to prevent.” Id. at 305. However, the Perry court noted that even when the plaintiffs have met those requirements, the court must still determine whether the statute is an appropriate basis for tort liability. Id. at 305. The court pointed out that the duty to obey the criminal law is not equivalent to a duty in tort, and that any statutory violation is not automatically negligence per se. Id. at 304, 304 n. 4. Rather, the court stated that “the mere fact that the Legislature adopts a criminal statute does not mean that this court must accept it as a standard for civil liability.” Id. at 304 (citing Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979)).

The Perry court set forth the following factors to guide a court in determining whether imposing tort liability for violation of a particular criminal statute is “fair, workable, and wise”:

(1) whether the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct, for an existing common law duty;
(2) whether the statute puts the public on notice by clearly defining the required conduct;
(3) whether the statute would impose liability without fault;
(4) whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of collateral wrongdoers; and
(5) whether the plaintiffs injury is a direct or indirect result of the violation of the statute.

Id. at 306-09. The ultimate lesson from Perry is that courts should not apply the doctrine of negligence per se if the criminal statute does not provide an appropriate basis for civil liability.

Considering the balance of the facts of this case as applied to these factors, we find that the statutes upon which plaintiffs seek to rely are inappropriate bases for negligence per se liability. As we have discussed at length, no duty to report a crime exists at common law. Therefore, adopting the statutory duty would create a new class of tort cases rather than defining more precisely what conduct breaches that duty. Id. at 306. The penal statutes relied upon by the appellants are aimed at protecting the State’s interest in apprehending felons. Even assuming that protection of the general public is the ultimate goal of these statutes, and thus, appellants fall within the class sought to be protected, these statutes do not make it entirely clear that a crime victim is unable to seek private restitution rather than public prosecution from an embezzler. “Assisting a criminal from being apprehended” by failing to report a crime has entirely different ramifications if done by the crime victim himself. Application of this doctrine would effectively force every crime victim to report and prosecute the criminal or risk being liable to a third party injured by that criminal in a similar manner. In many instances, it may eliminate a theft victim’s ability to recover his property because the perpetrator no longer has much to lose when he is behind bars, nor does he have any way of earning the money to make restitution with. We agree that these concerns are best left to the criminal justice system rather than in the hands of private individuals and do not find imposition of tort liability appropriate under these circumstances.

The statutes upon which plaintiffs rely do not form the basis of a duty for negligence per se liability. For many of the same reasons that we refuse to impose such a common law duty, we find that imposing liability based on a statutory duty in this situation is inappropriate. Accordingly, appellant Johnson & Davis, L.L.P.’s points two, three and four, and San Benito Bank & Trust’s second point are overruled.

Because gross negligence must be predicated upon a finding of negligence or negligence per se, we hold the trial court properly granted special exceptions as to plaintiffs’ gross negligence cause of action. We overrule San Benito Bank & Trust’s third point of error.

Failure to Warn of Pena’s Known Criminal History

In their final point of error, Johnson & Davis complains that Cascos and Oliveira breached a duty to warn it, as Pena’s subsequent employer, of Pena’s criminal history. They hinge this claim largely on the fact that appellees “used their facilities and phone lines” to communicate with Pena to resolve the prior embezzlement. We find that the duty plaintiffs seek to impose in this cause of action is the same as a duty under common law negligence for failure to report the crime. In order to make out their failure to warn cause of action, appellants must establish that appellees owed it a duty to take some affirmative act to protect it from the potential criminal conduct of Debbie Pena. For the same reasons as set forth previously at length, we find Cascos and Oli-veira had no duty to Johnson & Davis.

We overrule Johnson <⅞ Davis, L.L.P.’s fifth point of error, and affirm the judgment of the trial court in all respects.

Justice LINDA REYNA YÁÑEZ not participating.

      . Debbie Pena was also a defendant in the original lawsuit, but after the trial court dismissed its causes of action against Cascos and Oliveira, that portion of the suit was severed from the suit against Pena.

      . Appellants contend that appellees' breached the following statutes: (1) 18 U.S.C. § 4 (making it a crime to have knowledge of the actual commission of a felony and to conceal that or fail to report it); (2) 18 U.S.C. § 3 (making it a crime to assist a person known to have committed a crime in order to hinder or prevent his apprehension, trial or punishment); (3) Tex. Pen.Code Ann. § 36.05 (tampering with a witness); (4) Tex. Pen.Code Ann. § 38.05 (providing aid to avoid arrest).


source: Caselaw Access Project

author: Opinion by: TOM RICKHOFF, Justice.

license: Public Domain

text:
    George SUAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00456-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 6, 2000.

      Suzanne M. Kramer, San Antonio, for appellant.
    Edward F. Shaughnessy, III, Asst. Criminal Dist. Atty., San Antonio, for ap-pellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, SARAH DUNCAN, Justice.
   OPINION

Opinion by: TOM RICKHOFF, Justice.

A jury convicted George Suarez of burglary of a habitation and assessed punishment at 25 years confinement. We are asked to determine whether the evidence was sufficient to support the verdict and whether the trial court erred by not compelling the testimony of Suarez’s co-defendant. Finding the evidence sufficient and that the trial court did not err, we affirm the judgment.

SUFFICIENCY OF THE EVIDENCE

Suarez asserts the evidence is legally and factually insufficient to support the jury’s verdict. He contends the only evidence of his guilt was the speculation testimony of the complainant, Pablo Martinez.

A. STANDARD OF REVIEW

When considering a legal sufficiency challenge to the evidence, we view all evidence and the reasonable inferences therefrom in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Crim.App.1994). We then determine whether any rational trier of fact could find the crime’s essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997). We apply the same standard of review to evidence that is circumstantial as well as direct. See Geesa v. State, 820 S.W.2d 154, 158 (Tex.Crim.App.1991).

In considering a factual sufficiency challenge, we do not view the evidence through the prism of “in the light most favorable to the prosecution.” Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Instead, we examine all of the evidence impartially, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 958 S.W.2d at 410; Clewis, 922 S.W.2d at 129. We must defer to the factfinder, and may find the evidence factually insufficient only where necessary to prevent manifest injustice. See Cain, 958 S.W.2d at 407.

B. Analysis

On a Sunday afternoon in July 1998, Pablo Martinez, his wife, Cathy, and their three children returned from church services in the family van. Upon arriving at their home, Pablo saw an unfamiliar car parked in his driveway at the rear of the house. Pablo told his family to stay in the van, and he walked toward the rear of his house, where he saw two men coming out of the house. The two men were Suarez and Trinidad Riojas. Riojas, who was holding Pablo’s television, handed the television to Pablo, who took the television and put it on the ground. Suarez walked to his car, while Riojas walked toward Pablo’s van.

Meanwhile, Cathy was trying to call the police on a cellular telephone. When Pablo saw Riojas try to grab the telephone away from Cathy, he ran toward Riojas. Cathy went to a neighbor’s house, and called the police. Suarez and Riojas got into the van, with Pablo’s three children still inside the van. Suarez tried to start the van, but Pablo had the keys. Suarez told Pablo to give him the keys, Pablo refused, and all three men briefly struggled outside the van. When they could not get the keys away from Pablo, Riojas walked away and Suarez walked back to his car. Suarez tried to start his car, while Pablo tried to pull him out of the car. Suarez initially drove his car forward, running over Pablo’s television. Suarez then put the car in reverse and attempted to back out of Pablo’s driveway, but the van blocked his way. Suarez got out of the passenger-side of his car, and he and Pablo again struggled in the backyard. Suarez got away from Pablo and ran through an alley behind the house. Pablo jumped a fence, and followed Suarez for several blocks. Eventually, Pablo flagged down a police car and explained what had happened. The police officer arrested Suarez. The police also arrested Riojas. Eventually, everyone arrived back at Pablo’s house in separate police cars. The police found more of Pablo’s possessions inside Suarez’s car.

Suarez contends the evidence is insufficient because he was merely present at the scene and played no role in the robbery perpetrated by Riojas. The jury was charged on the law of parties and criminal responsibility for the conduct of another. For one to be criminally responsible as a party, the State must prove that the defendant acted with the intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1994); Romo v. State, 568 S.W.2d 298, 303 (Tex.Crim.App.1978) (opinion on reh’g). Where the evidence shows a defendant was not the primary actor, but at most responsible for the actions of the primary actor, the State must prove or the record must show conduct constituting the offense plus an act or acts by the defendant done with intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App.1985). Evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement. Id.

Participation in a criminal offense may be inferred from the circumstances. Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App.1987). While an agreement of the parties to act together in common design seldom can be proved by direct evidence, reliance can be had on the actions and words of the parties showing by either direct or circumstantial evidence, an understanding and common design to do a certain act. Ex parte Prior, 540 S.W.2d 723, 727-28 (Tex.Crim.App.1976).

Mere presence or even knowledge of an offense do not make one a party to the offense. Oaks v. State, 642 S.W.2d 174, 177 (Tex.Crim.App.1982). Presence at the scene of the commission of the offense is, however, a circumstance which, when taken with other facts, may be sufficient to show that the accused was a participant. Harris v. State, 645 S.W.2d 447, 457 (Tex.Crim.App.1983). Moreover, one’s acts committed after the offense is completed cannot make him a party to the offense. Morrison v. State, 608 S.W.2d 233, 235 (Tex.Crim.App.1980). However, acts committed before, during, and after the offense may be considered by the court in deciding whether a defendant participated in a common scheme for purposes of party liability. Beier, 687 S.W.2d at 4. And flight, though not dispositive, can be considered by the trier of fact as an indication of guilt. Alba v. State, 905 S.W.2d 581, 586 (Tex.Crim.App.1995).

Here, the jury was presented with the following evidence that Suarez: was inside Pablo’s home; walked out of the home with Riojas, who was carrying Pablo’s television; tried to flee in Pablo’s van, his own car, and on foot; struggled with Pablo to get the keys to the van; and had stolen possessions belonging to Pablo in his car. Viewed in the light most favorable to the verdict, we hold the evidence was legally sufficient to support the verdict. When reviewing all the evidence impartially, we find the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. We hold the evidence was factually sufficient to support the jury’s verdict.

RIGHT TO COMPULSORY PROCESS

During trial and outside the jury’s presence, Suarez told the trial court he intended to call Riojas to establish that Riojas acted alone in committing the burglary. The court asked Riojas’s attorney if she had any objections; and she replied that while she had no objections to him being called as a witness, he would assert his Fifth Amendment right against self-incrimination as to any question put to him. The State told the court that Riojas was on probation and answering any questions might subject him to having his probation revoked. The trial court, expressing its concern that there were other offenses committed during the underlying offense for which Riojas could face criminal charges, allowed Riojas to invoke his Fifth Amendment right.

Suarez then asked that he be allowed to call Riojas as a witness and have him invoke his Fifth Amendment right in the jury’s presence. The State objected, arguing that Riojas should not be subjected to invoking his Fifth Amendment right in the jury’s presence. The trial court agreed with the State, and did not allow Suarez to call Riojas as a witness.

On appeal, Suarez asserts he was denied his constitutional right to compulsory process because the trial court did not allow him to call Riojas as a witness.

A defendant’s right to subpoena witnesses in his favor arises out of the United States Constitution’s Sixth Amendment right of compulsory process. U.S. Const, amend. VI. Article I, The Texas Constitution provides that criminal defendants have a right to “compulsory process for obtaining witnesses.” Tex. Const, art. I, § 10. The Sixth Amendment right to compulsory process “is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). The Texas Court of Criminal Appeals has recognized that “the right of the accused to have compulsory process for obtaining witnesses in his behalf as guaranteed by the Sixth Amendment is so fundamental and essential to a fair trial that it is incorporated in the due process clause of the Fourteenth Amendment and is applicable to state trials.” Brito v. State, 459 S.W.2d 834, 837-38 (Tex.Crim.App.1970) (citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)); see also Hardin v. State, 471 S.W.2d 60, 62 (Tex.Crim.App.1971).

Generally, a defendant’s right to compulsory process is denied when the state arbitrarily denies a defendant the right to put on the stand a witness whose testimony would have been relevant and material to his defense. See Ex parte Scarbrough, 604 S.W.2d 170, 173-74 (Tex.Crim.App.1980); Hardin, 471 S.W.2d at 62. Here, it is clear from the record that Riojas intended to invoke his Fifth Amendment right. In a criminal prosecution, the accused’s right to compulsory process under the Sixth Amendment does not override a potential -witness’ Fifth Amendment privilege against self-incrimination. See Bridge v. State, 726 S.W.2d 558, 567 (Tex.Crim.App.1986); see also Ellis v. State, 688 S.W.2d 879, 382-83 (Tex.Crim.App.1984), and cases cited therein.

Suarez argues Riojas did not have the right to invoke his Fifth Amendment privilege because there were no pending charges against him and he had already pled guilty to the underlying offense. Suarez asserts the State could not have used any of Riojas’s testimony against him; therefore, the trial court erred in allowing him to invoke his Fifth Amendment right. However, the trial court was informed that Riojas intended to invoke the privilege and that he intended to do so at the advice of his attorney. The advice to Riojas by his legal counsel relieved the trial court of the obligation to make any further determination of whether Riojas’s assertion of the privilege was valid. See Chennault v. State, 667 S.W.2d 299, 302 (Tex.App.-Dallas 1984, pet. ref'd). This is particularly true if the privilege is claimed in good faith. See Ross v. State, 486 S.W.2d 327 (Tex.Crim.App.1972). The record is devoid of any evidence that Rio-jas claimed his privilege in bad faith. Even when a co-defendant has pled guilty and has been sentenced in connection with the offense, he may still properly invoke his Fifth Amendment privilege against self-incrimination, because if his testimony contradicts any previous judicial admissions, he could be subject to the charge of perjury. See Delrio v. State, 866 S.W.2d 304, 306 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd).

The critical inquiry for the trial court to make before it excludes testimony is whether a potential defense witness who may have a privilege against testifying intends to invoke that privilege, or intends to waive that privilege if called to the stand. The intentions of a potential witness, if not already apparent, can be determined by questioning that potential witness at a hearing outside the presence of the jury. See Bridge, 726 S.W.2d at 567. Once the potential witness indicates that he will invoke his constitutional privilege, the court need not call him to the stand before the jury. Id.

During the hearing outside the jury’s presence, Riojas himself took the stand and invoked his Fifth Amendment privilege. It was apparent to the trial court that Riojas would invoke his privilege at trial and that to call him to the witness stand would result only in his assertion of the privilege. A defendant does not have the right to have a witness invoke the Fifth Amendment privilege in the presence of the jury. See Bridge, 726 S.W.2d at 567. Such testimony has no value and would only be prejudicial.

We hold that the trial court did not err when it did not compel Riojas to testify after learning that he would invoke his Fifth Amendment privilege upon his attorney’s advice.

We affirm the trial court’s judgment.

      . The State contends Suarez waived this complaint, relying on a portion of the record in which Suarez’s attorney states, "And, again, just for the record, I am therefore denied the right to cross-examine this witness in front of the jury, thereby allowing the jury to weigh the credibility of this witness.” The State argues the complaint at trial regarding cross-examination does not comport with the complaint on appeal regarding compulsory process. We disagree. A complete review of the record reveals Suarez's attorney was specific as to his complaint that he was being denied his constitutional right to compulsory process.


author: BRIAN QUINN, Justice.

text:
    The STATE of Texas, Appellant, v. Jeffery Patrick WALLETT, Appellee.
    No. 07-99-0483-CR.
    Court of Appeals of Texas, Amarillo.
    Sept. 12, 2000.

      Michael McDougal, Dist. Atty., Gina Gibson, Asst. Dist. Atty., Peter C. Speers, III, Asst. Dist. Atty., Conroe, for appellant.
    Stephen D. Jackson, Jackson, Riley & Walker, L.L.P., Conroe, for appellee.
    Before BOYD, C.J., and QUINN and REAVIS, JJ.
   BRIAN QUINN, Justice.

The State of Texas appeals from an order granting the motion of Jeffery Patrick Wallett to suppress evidence. The evidence sought to be suppressed was obtained as a result of a traffic stop by a police officer. Through two points of error, the State alleges that the trial court erred because under the “totality of the circumstances” the officer had not only reasonable suspicion but also probable cause to believe that Wallett was engaged in criminal activity. We affirm.

Background

The only evidence proffered at the hearing on the motion to suppress consisted of the testimony of a Department of Public Safety officer and a videotape made by that officer. Through his testimony, the officer described how he allegedly witnessed Wallett’s car weave, “jerk”, and “cross over the inside stripe three times” as Wallett traveled down Highway 105 at approximately 12:48 a.m. The tape depicted several vehicles traveling on Highway 105 at the time, including that of Wallett. While Wallett’s vehicle can be seen at one point slowly drifting toward and away from the center lane that divided the highway, the tape depicts no “jerkfing]” motion or multiple instances of weaving. Nor did it clearly show Wallett’s vehicle actually cross over the center stripe. Nevertheless, these facts allegedly entitled the officer to stop his suspect for purposes of a temporary investigation or to cite him for “fail[ing] to drive in a single lane.”

Wallett disagreed with the State’s interpretation of the circumstances. He contended that they provided neither reasonable suspicion to justify a temporary detention nor probable cause to believe that a traffic violation had occurred. The trial court sided with Wallett, stated at the end of the hearing that “[biased upon what I’ve got in front of me, I don’t think the burden has been met with respect to the State’s burden ...” and granted the motion to suppress.

Standard of Review

Whether the trial court erred in denying the motion depends upon whether it abused its discretion. Benitez v. State, 5 S.W.3d 915, 918 (Tex.App.—Amarillo 1999, pet. ref'd). Whether the court abused its discretion depends upon whether, given the record before it and the applicable law, the decision fell outside the zone of reasonable disagreement. Id. Whether the decision fell within the zone of reasonable disagreement depends upon whether any ground exists which, based upon the record, supports the court’s decision. This is true even if the ground went unmentioned by anyone below. State v. Clemmer, 999 S.W.2d 903, 905 (Tex.App.—Amarillo 1999, pet. ref'd). And, in making that determination, we construe the record in a light most favorable to the court’s decision. Id.

Next, while questions of law are subject to unfettered de novo review, the same is not necessarily true with regard to mixed questions of law and fact. That is, the application of law to fact is a mixed question of law and fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). But, before the law can be applied to any fact, one must decide what the relevant facts are. This is done by the fact-finder which, in performing its duty, considers the evidence presented of record and, based upon that evidence and its own common sense, synthesizes the operative facts particular to the case. Moreover, the evidence before it may be either uncontra-dicted or contradictory. Whether it is un-contradicted or contradictory determines the amount of deference that we accord to the ultimate decision. For instance, if the evidence is contradictory or the credibility or demeanor of a key witness is placed into conjecture, then we afford almost total deference to the fact-finder’s determination of the historical facts involved. Id.; State v. Clemmer, 999 S.W.2d at 905. The same deference is afforded to the manner in which the trial court applied the law to the facts before it. Id. However, if no factual dispute appears of record or the witness’s credibility goes unquestioned, then we review, de novo, the manner in which the law was applied to the undisputed fact. Id. In sum, when the evidence is contradictory or when issues of credibility arise, the trial court may credit the evidence and witnesses it chooses to credit. And, when it does, we are not free to interfere with its choice.

Application of Standard

If nothing else, the record of Wal-lett’s purported activity is far from clear and undisputed. For instance, the officer testified that he saw Wallett weave and cross the center line before activating the video camera. So too did the officer describe the video as depicting Wallett “cross over into [the] turn lane” and “jerk[] a couple times inside his lane.” Yet, upon viewing the tape, one sees no “jerkfing]” as suggested by the officer, but only (and at best) one slow drift toward and away from the center lane. Additionally, whether the tape illustrates that the vehicle actually crossed into the lane can be reasonably debated. Furthermore, when pressed upon cross-examination, the officer eventually tempered his description of Wallett’s jerking movement by conceding that it represented more of a “slow jerk or slow drift within the lane” rather than a hard jerk.

The difference between the officer’s description- of the tape’s content and what one can personally see from it, as well as the officer’s concession regarding the “slow jerk,” effectively placed the credibility and accuracy of the witness’s testimony into question. Indeed, the trial court implicitly recognized as much, as illustrated by various of its comments. For instance, after playing the tape several times, the court asked the prosecuting attorney “did you see any jerking” or “did you simply see what you believed to be a weave across the center lane.” (Emphasis added). So too did the court comment about how videotaping can “assist[ ] folks that were stopped in showing that they weren’t guilty or [that] reasonable suspicion did not exist.” In each comment is the implicit observation that what was shown in the tape differed from what the officer said it showed. Consequently, the court was entitled to use this variation to place all of the officer’s testimony into question. Simply put, if the officer was wrong about one thing, the trial court could have rationalized that maybe he was wrong about other aspects of Wallett’s purported conduct and, upon doing so, opted not to credit any of his testimony. So too was it entitled to conclude, given the circumstances before it, not only that Wal-lett merely drifted within his own lane but also that in so drifting he committed no act which evinced reasonable suspicion to believe that crime was afoot or probable cause to believe that a traffic regulation had been violated. See Hernandez v. State, 983 S.W.2d 867, 868-72 (Tex.App.—Austin 1998, pet. ref'd) (holding to that effect).

Upon affording the trial court’s resolution of disputed historical fact deference as per Guzman and Clemmer, we hold that some grounds exist to support the court’s decision. Thus, the decision fell within the zone of reasonable disagreement and was not an instance of abused discretion.

Accordingly, we affirm the order granting the motion to suppress.

      . Having found that oral argument would not significantly aid the court in determining the issues presented, this appeal is decided without oral argument. Tex.R.App. P. 39.8.

      . How one can jerk slowly goes unexplained.

      . We also reject the State’s argument that the trial court focused merely upon the videotape as opposed to the totality of the circumstances. While he did mention how police videos may help suspects prove their innocence or otherwise defeat prosecution, the trial judge expressly said he made his decision “[biased upon what I’ve got in front of me.” From this, one could reasonably infer that he considered, compared, and weighed all the evidence of record or the totality of the circumstances. And, given the absence of findings of fact and conclusions of law, we presume that he did. See State v. Clemmer, 999 S.W.2d 903, 905 (Tex.App.—Amarillo 1999, pet. ref’d) (stating that in the absence of expressed findings of fact and conclusions of law we presume that the court made those findings necessary to support its ruling).


author: Opinion by: KAREN ANGELINI, Justice.

text:
    Jose SALINAS and Maria Salinas, Appellant, v. GARY POOLS, INC., Appellee.
    No. 04-99-00812-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 20, 2000.

      Rey Perez, Tinsman & Houser, Inc., San Antonio, Susan Barilich, Godwin, White & Gruber, P.C., Dallas, for appellant.
    David Lee Cunningham, Killian, Hayden & Cunningham, San Antonio, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by: KAREN ANGELINI, Justice.

The issue in this case is whether constructive notice of deed records commenced the running of statutes of limitations on causes of action brought by homeowners against a swimming pool contractor who installed their pool on a public easement. The lawsuit was filed ten years after the pool was installed, but less than two years after the homeowners discovered it had been installed on an easement. The contractor moved for summary judgment based on statutes of limitations. The homeowners asserted that the discovery rule precluded dismissal. The trial court granted the motion for summary judgment, and the homeowners appeal. We reverse the summary judgment and remand the case to the trial court.

The Facts

In June of 1988, Jose and Maria Salinas contracted with Gary Pools to install a swimming pool in their yard. Originally, the written plan called for the pool to be installed in the back yard, behind the house. Gary Pools presented the plan to the city of San Antonio, with a diagram of where the pool was to be installed, in order to obtain the requisite permits to build the pool. Gary Pools later determined it was not feasible to install the pool in the backyard, and informed the Salinases they would install the pool in the side yard instead. The contract between Gary Pools and the Salinases was not modified, the revised plan was not submitted to the city of San Antonio, and the pool was installed. Ten years later, in 1998, the Salinases decided to sell their house. When the property was surveyed at the behest of a prospective buyer, they discovered that the swimming pool had been partially installed on a public right of way easement owned by the city. The City of San Antonio Public Works Department has the option of forcing the removal of the pool to expand the public right of way at any time, and this fact, according to the Salinases, has seriously depreciated the value of their property. The Salinases claim that the 1998 title search was the first one they conducted on the property because they had assumed the previous owner’s existing mortgage. They further claim that they never knew about the existence of the public easement until that time. The easement was not apparent from a visual view alone.

The Salinases sued Gary Pools under Texas Deceptive Trade Practices Act (DTPA) and common law negligence theories. They asserted that Gary Pools knew or should have known the pool was constructed on the public easement. Gary Pools moved for summary judgment, asserting that the Salinases’ causes of action were barred by statutes of limitations, and that the discovery rule was inapplicable because the acts complained of “could have been discovered through examination of public records.” As evidence, they pointed to the Salinases’ original petition and their response to Gary Pools’ request for disclosure. The Salinases responded with summary judgment evidence of their own, asserting that they did not discover the existence of the public easement until they tried to sell the property, less than two years before they sued Gary Pools. The Salinases’ summary judgment evidence consisted of affidavits from Jose Salinas and their realtor through whom they attempted to sell their home. Documentary evidence attached to the affidavits include:

(1) a copy of the plat provided by Gary Pools in 1988 to the City of San Antonio showing the prospective placement of the pool in the backyard, which is stamped “Reviewed” by the City of San Antonio Public Works Department with the notation “for flood plain only,” and is also stamped “Approved” by the Building Inspector’s Office,
(2) a copy of the 1998 earnest money contract on the Salinases’ home that fell through,
(3) a copy of a survey performed on their property in 1998 showing the easement thereon and also showing that the easement is recorded in the deed records, and
(4) a copy of the commitment for title insurance provided to the prospective buyers.

Review of Summary Judgments based on Statutes of Limitations

In a motion for summary judgment, the movant bears the burden to show there exists no genuine issue of material fact and he is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In reviewing a grant of summary judgment, we take as true all evidence favorable to the nonmovant and make all reasonable inferences in favor of the nonmovant. See id. at 548-49.

A defendant who moves for summary judgment on the affirmative defense of limitations has the burden to: (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence, should have discovered the nature of its injury. See KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.1999). If the defendant conclusively establishes that the statute of limitations bars the plaintiffs action, the plaintiff must then submit summary judgment proof raising a fact issue in avoidance of the statute of limitations. See id.

Accrual of a Cause of Action and the Discovery Rule

In general, a cause of action accrues and limitations begin running when a wrongful act causes a legal injury. See S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). In this case, the Salinases claim that Gary Pools’ wrongful acts occurred in 1988 when the company installed their swimming pool on a public easement. Thus, the Salinases’ DTPA and negligence causes of action filed in 1999 are clearly barred by two year statutes of limitations; their survival hinges on application of the discovery rule. See Tex. Civ. Prao. & Rem.Code Ann. § 16.003(a) (Vernon 1986) (negligence); Tex. Bus. & Com.Code Ann. § 17.565 (Vernon 1987) (DTPA).

The discovery rule defers accrual of certain causes of action until the plaintiff knew, or exercising reasonable diligence, should have known of the wrongful act causing injury. See Advent Trust Co. v. Hyder, 12 S.W.3d 534, 538 (Tex.App.San Antonio 1999, pet. denied). The discovery rule applies only to limited categories of cases. See HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998). For example, the rule always applies to DTPA claims, which, according to the statute, accrue on the date on which the false, misleading or deceptive act or practice occurred, or when the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading or deceptive act or practice. See Tex. Bus. & Com.Code Ann. § 17.565 (Vernon 1987). The discovery rule also applies to cases involving fraud or fraudulent concealment. See Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex.1997). However, in order to determine whether the discovery rule applies to other cases— for example, negligence cases — we must analyze the facts to determine whether the nature of the injury is inherently discoverable and the injury itself is objectively verifiable; only then does the discovery rule apply. See id.; HECI, 982 S.W.2d at 886; Advent, 12 S.W.3d at 538.

Constructive Notice and Statutes of Limitations

In its motion for summary judgment, Gary Pools maintained that the Sali-nases had constructive notice of the public easement, as it was a matter of public record, and therefore no issue of fact existed regarding when the Salinases discovered their injury which occurred in 1988. The doctrine of constructive notice creates an irrebuttable presumption of actual knowledge of certain matters. See HECI, 982 S.W.2d at 887. It is applied when a person knows where to find the relevant information, and had a duty to find that information, but failed to seek it out. See Little v. Smith, 943 S.W.2d 414, 421 (Tex.1997). The doctrine of constructive notice has limited application, and when the rationale behind application of the doctrine does not exist, public records will not be held to create an irrebuttable presumption of actual notice. See HECI, 982 S.W.2d at 887. For example, in HECI Exploration Co. v. Neel, the Texas Supreme Court noted that constructive notice of real property records is necessary to preserve stability and certainty regarding title to real property, and constructive notice of probate records in in rem proceedings is necessary because such proceedings are intended to bind all persons. This case is neither a case regarding title to real property, nor is it an in rem proceeding. Id. Gary Pools does not cite a ease outside either of those two categories, which would show that the rationale behind application of the constructive notice doctrine exists within these facts.

a. DTPA Cause of Action

This court has previously held that the doctrine of constructive notice of real property records does not operate to constitute notice to plaintiffs bringing DTPA cases which would begin the running of the statute of limitations. See Lightfoot v. Weissgarber, 763 S.W.2d 624, 627 (Tex.App.-San Antonio 1989, writ denied). See also Johnson v. Prudential Relocation Management, 918 S.W.2d 68, 70 (Tex.App.-Eastland 1996, writ denied). The Lightfoot holding is based on the Texas Supreme Court’s holding in Ojeda de Toca v. Wise, 748 S.W.2d 449, 451 (Tex.1988), in which the court held that constructive notice of deed records does not constitute a defense to claims brought under the DTPA. Therefore, we hold that as to the Salinases’ DTPA cause of action, the deed records in this case would not constitute constructive notice to commence the running of the statute of limitations. The Salinases produced summary judgment proof showing that they did not discover the easement because no title search was done on the property when they assumed the original owner’s existing mortgage, and the easement was not visible to the eye. Whether or not the Salinases exercised reasonable diligence in discovering their DTPA cause of action remains a question of fact. Because Gary Pools failed to conclusively negate the application of the discovery rule, the summary judgment on the DTPA cause of action is reversed.

b. Negligence Cause of Action

We do not need to determine whether the doctrine of constructive notice as a matter of law trumps the discovery rule with respect to the Salinases’ negligence cause of action because, as we will explain, Gary Pools did not prove the Sali-nases actually had constructive notice more than two years before filing suit. A different issue is whether the discovery rule is even applicable to the negligence cause of action. As we stated, the discovery rule tolls statutes of limitation in negligence cases when the nature of the injury is inherently undiscoverable and the injury itself is objectively verifiable. See S.V. v. R.V., 933 S.W.2d 1, 6-7 (Tex.1996); HECI, 982 S.W.2d at 886; Advent, 12 S.W.3d at 538. To the extent the Salinases argue that the discovery rule is universally applicable to negligence causes of action as a matter of law, their argument is incorrect.

The Texas Supreme Court in HECI Exploration Co. v. Neel discussed the relationship between the doctrine of constructive notice and the discovery rule. In considering whether the plaintiff’s cause of action based on “a failure to notify” was inherently undiscoverable for the purpose of determining whether to apply the discovery rule to toll the statute of limitations, the court rejected the defendant’s argument that the plaintiff had constructive notice of public records kept by the Railroad Commission. See HECI, 982 S.W.2d at 886. The court held that the constructive notice doctrine was only applied in limited circumstances, including suits to try title and probate proceedings. See id. However, the court concluded that while certain public records kept by the Railroad Commission did not provide con-struetive notice to the plaintiffs as a matter of law, they were “a ready source of information, and a cause of action for failure to provide that same information [was] not inherently undiscoverable.” See id. at 887. Therefore, under HECI, the fact that the easement in this case was a matter of public record may negate the application of the discovery rule to the Salinases’ negligence cause of action against Gary Pools by rendering the cause of action inherently discoverable. However, Gary Pools must show that the easement became a public record more than two years before the Salinases filed their lawsuit. They did not meet that burden.

As we stated earlier, Gary Pools, in order to obtain summary judgment, had to: (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule if it applies. See KPMG Peat Marwick, 988 S.W.2d at 748. While the summary judgment evidence produced by the Salinases shows that the easement was revealed by a title search that occurred in 1998, and the easement is recorded in the deed records, the evidence does not show when the easement was recorded. Gary Pools did not provide any evidence to show when the Salinases obtained constructive notice, if any. Further, without this information, we cannot make a determination whether the Salinases’ negligence cause of action was inherently undiscoverable and thus subject to the discovery rule. Therefore, we must reverse the summary judgment on the negligence cause of action.

The trial court’s order granting summary judgment on the Salinases’ causes of action is reversed and this case is remanded for trial.


author: ALMA L. LÓPEZ, Justice.

text:
    Edward ESPARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00153-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 20, 2000.

      Alex J. Scharff, Campion & Campion, San Antonio, for appellant.
    Edward F. Shaughnessy, III, Asst. Criminal Atty., San Antonio, for appellee.
    Sitting: TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice, SARAH B. DUNCAN, Justice.
   OPINION

ALMA L. LÓPEZ, Justice.

A jury found the appellant, Edward Es-parza (“Esparza”), guilty of committing the offense of murder by strangling, hogtying, and beating the victim, Sylvia Gonzalez (“Sylvia”), with a blunt object. The jury sentenced Esparza to sixty-five years in prison. Esparza appeals his conviction in this appeal. Because we find no error, we affirm the judgment of the trial court.

Juror Information Cards

In his first issue, Esparza complains that the trial court erred in refusing to disclose the juror information cards, in violation of article 35.29 of the Texas Code of Criminal Procedure. After the trial, Esparza filed a motion to unseal the juror information fist, stating “[t]o properly receive effective assistance of counsel, the Defendant is in need of the juror information sheets to fully investigate possible jury misconduct.” The trial court denied the motion. Esparza contends that his attorney had a duty to investigate possible jury misconduct to render effective assistance, and that possible jury misconduct showed “good cause” as to why the trial court should have disclosed the juror information cards.

Article 35.29 of the Texas Code of Criminal Procedure provides the following:

Information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror’s home address, home telephone number, social security number, driver’s license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel except on application by a party in the trial or on application by a bona fide member of the news media acting in such capacity to the court in which the person is serving or did serve as a juror. On a showing of good cause, the court shall permit disclosure of the information sought.

See Tex.Ceim. PROC.Code ANN. art. 35.29 (Vernon Supp.2000). Juror information shall remain confidential except upon a showing of good cause. See Falcon v. State, 879 S.W.2d 249, 250 (Tex.App.—Houston [1st Dist.] 1994, no pet.). What constitutes good cause must necessarily be based upon more than a mere possibility that jury misconduct might have occurred. In this case, the request for the juror information cards was a general one which reflected only the desire to probe for possible, but unspecific, issues that might give rise to allegations of jury misconduct. Good cause must be based on more than mere conjecture; it must have a firm foundation. See, e.g., Hooker v. State, 932 S.W.2d 712, 716-17 (Tex.App.—Beaumont 1996, no pet.) (noting that defendant’s attorney did not show good cause for obtaining access to juror’s addresses and telephone numbers when she indicated that she had “a couple of thoughts” regarding the trial and wanted an opportunity to talk to the jury).

While not exactly on point, this court dealt with a similar issue — whether the defense attorney was required to surrender his copy of the juror information sheets — in Saur v. State, 918 S.W.2d 64 (Tex.App.—San Antonio 1996, no pet.). In Saur, the defense attorney’s only complaint to the trial court was that he would be unable to effectively assist his client without certain notes which he made on the juror information sheets. See Saur, 918 S.W.2d at 66. The defense attorney, however, did not request that he be allowed to copy such notes, in addition to the juror’s names. See id. We held that the trial court did not err because the defense attorney failed to show how the absence of the notes prevented him from effectively assisting his client. See id. at 67. Like Saur, the defense attorney in the instant case failed to show how access to juror information cards would prevent him from effectively rendering assistance to Espar-za.

Because Esparza failed to show good cause, the trial court did not err when it denied Esparza’s request for the disclosure of the juror information cards. See Hooker, 932 S.W.2d at 717; Saur, 918 S.W.2d at 67. Accordingly, we overrule this issue.

Admissibility of Testimony

In his second issue, Esparza complains that the trial court erred in excluding the testimony of Alicia Gonzalez, the victim’s sister, to the effect that Sylvia had been threatened by another person other than Esparza. Specifically, Esparza claims Alicia’s testimony was admissible under the “statement against interest” and “present sense impression” exceptions of the hearsay rule.

Whether evidence falls within an exception to the hearsay rule is a matter to be resolved by the trial court. The trial court has wide discretion in determining the admissibility of the evidence. Johnson v. State, 698 S.W.2d 154, 160 (Tex.Crim.App.1985); Reidweg v. State, 981 S.W.2d 399, 403 (Tex.App.—San Antonio 1998, pet. denied). To justify reversal on this basis, a defendant must show that the trial court clearly abused its discretion in excluding admissible evidence. See Johnson, 698 S.W.2d at 160; Reidweg, 981 S.W.2d at 403. Error cannot be based upon a trial court’s ruling that excludes or admits evidence unless a substantial right of the party is affected. See Tex.R. Evid. 103(a); Tex.R.App. P. 44.2(b); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991).

In the instant case, before the defense attorney began his case-in-chief, the trial court conducted a hearing outside the jury’s presence in order to determine the admissibility of the proffered testimony of Alicia Gonzalez, the victim’s sister. Alicia testified that she had a conversation with Sylvia, two months before Sylvia’s death, at which time Sylvia stated that someone had left a photograph in her car. The photograph depicted a man who appeared to have died as a result of strangulation. Alicia testified that Sylvia said there was a message on the back of the photograph which said something similar to “this could happen to you.” Alicia declared that she had never seen the photograph or the written message on the back. The trial court ruled that Alicia’s testimony was inadmissible.

Esparza contends that Alicia’s testimony was admissible under an exception to the hearsay rule as a statement against interest, in accordance with Rule 803(24). Hearsay, defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing [and] offered into evidence to prove the truth of the matter asserted,” is not admissible unless otherwise allowed by law. See Tex.R. Evid. 801(d), 802. When deciding whether the hearsay exception of a statement against interest is admissible under Rule 803(24), the trial court must determine: (1) whether the statement in question tends to expose the declarant to criminal liability, and (2) if there are corroborating circumstances that clearly indicate the trustworthiness of the statement. See Tex.R. Evid. 803(24); Bingham, v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). If both of these criteria are met, then Rule 803(24) is satisfied. See Bing-ham, 987 S.W.2d at 57. The requirements for a corroboration of a statement against interest must be sufficiently convincing to clearly indicate the trustworthiness of the statement. See Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App.1999), cert. denied, — U.S. -, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). A trial court should consider a number of factors: (1) whether the guilt of a declarant is inconsistent with the guilt of a defendant; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship between the declarant and the party to whom the statement is made; and (6) the existence of independent corroborative facts. See Dewberry, 4 S.W.3d at 751; Bingham, 987 S.W.2d at 58.

In the instant case, Esparza has misconstrued the application of Rule 803(24). Here, the declarant was Sylvia, the victim. Alicia’s testimony did not expose Sylvia to criminal liability, nor was it sufficiently trustworthy under any of the factors in Dewberry. See Dewberry, 4 S.W.3d at 751. Because neither criteria are satisfied in the application of Rule 803(24), Alicia’s testimony is not construed as a statement against interest. Therefore, Esparza fails to demonstrate how the trial court’s exclusion of Alicia’s testimony on this basis was an abuse of discretion.

In addition, Esparza contends that Alicia’s testimony is admissible as an exception to the hearsay rule as a present sense impression under Rule 803(1). Rule 803(1) defines a present sense impression as “a statement describing or explaining an event or condition made while the defendant was perceiving the event or condition, or immediately thereafter.” See Tex.R. Evid. 803(1). The rationale for the exception stems from the contemporaneity of the statement, not its spontaneity. See Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993). Statements of present sense impression possess the following safeguards which render them reliable: (1) the report at the moment of the thing then seen, heard, etc., is safe from any error from defect of memory of the declarant; (2) there is little or no time for a calculated misstatement; and (3) the statement will usually be made to another (the witness who reports it) who would have the equal opportunity to observe and hence to check a misstatement. See id.

In the instant case, Esparza did not identify the event or condition Sylvia was perceiving when she allegedly told Alicia about the photograph and the written message on back of the photograph. In fact, Esparza has not indicated when Sylvia received the photograph or how long Sylvia had the photograph before her conversation with Alicia. Without these indications, Alicia’s statements were not reliable. As a result, the trial court properly excluded the testimony. See id. Because the trial court properly excluded Alicia’s testimony, we overrule this issue.

Due Process

In his third issue, Esparza complains that he was denied his right to due process of law when the trial court excluded the testimony of Alicia Gonzalez. Specifically, Esparza contends that the exclusion of this testimony violated the due process clause because it rendered the trial fundamentally unfair.

Due process requires a fair trial before a fair tribunal. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Norris v. State, 788 S.W.2d 65, 72 (Tex.App.—Dallas 1990, pet. ref'd). Few rights are more fundamental than that of an accused to present witnesses in his own defense. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In the exercise of this right, the accused must comply with the established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. See id. Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically to defeat the ends of justice. See id.

In the instant case, Esparza argues that the evidence sought to be admitted was absolutely exculpatory to him because it came from a reliable source and was the type of “smoking gun” evidence that Esparza needed to support his defense theory — that two unidentified men burst into his mother’s apartment and killed Sylvia. Esparza maintains that the excluded evidence was “crucial, critical, and highly significant” to this case. See Pemberton v. Collins, 991 F.2d 1218, 1227 (5th Cir.1993), cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 596 (1993). However, Esparza was not denied a fair trial by the application of the hearsay rules to exclude evidence that the victim had spoken about a threat from a third person because the trial court properly excluded Alicia’s testimony as hearsay. Accordingly, we overrule this issue.

Having overruled each of Esparza’s issues on appeal, we affirm the judgment of the trial court.


author: Opinion by Justice NELDA V. RODRIGUEZ.

text:
    Rolando and Andrea REYES, Appellants, v. The STATE of Texas, Appellee.
    No. 13-99-280-CV.
    Court of Appeals of Texas, Corpus Christi.
    Sept. 21, 2000.
    Rehearing Overruled Nov. 16, 2000.

      Michael K. Burns, Corpus Christi, for Appellants.
    Terry Joseph Breen, Asst. Dist. Atty., Refugio, Michael A. Sheppard, Dist. Atty., Cuero, Robert C. Lassmann, Asst. Dist. Atty., Cuero, for State.
    Before Justices HINOJOSA, CHAVEZ, and RODRIGUEZ.
   OPINION

Opinion by Justice NELDA V. RODRIGUEZ.

Rolando Reyes and Andrea Reyes appeal a judgment nisi and subsequent judgment declaring forfeiture of a $25,000.00 bail bond for which they were a surety. We affirm.

Appellants posted an appeal bond for Santos Cuellar in the amount of $25,000.00 with the Sheriff of Refugio County, Texas on January 13, 1998. Cuellar was not released from custody; instead, he was picked up by federal authorities on January 23, 1998 and was subsequently deported to Mexico. There is no evidence in the record showing why Cuellar was deported. On December 8, 1998, the trial court held a hearing pursuant to this Court’s order that the trial court appoint new counsel to represent Cuellar on appeal. Although notice was sent to appellants, no notice was sent to Cuellar to be present at the hearing. After Cuellar did not appear at the hearing, the trial court entered a judgment nisi, declaring forfeiture of the bond. On April 7, 1999, after a hearing, the court entered a final judgment declaring the bond forfeited. This appeal ensued.

By their first issue, appellants contend the trial court erred in failing to exonerate them from liability because the bond in question was not a valid and binding undertaking in law.

Article 22.13 of the code of criminal procedure provides that, a surety will be exonerated from liability if “the bond is, for any cause, not a valid and binding undertaking in law.” Tex.Code CRIM. Proc. Ann. art. 22.13(3) (Vernon 1989). Furthermore, article 17.29 provides, “[w]hen the accused has given the required bond, either to the magistrate or the officer having him in custody, he shall at once be set at liberty.” Tex.Code CRim. PROC. Ann. art. 17.29(a) (Vernon Supp.2000).

Appellants assert Cuellar was never released from custody and set at liberty; thus, the bond was not a valid undertaking in law. The evidence shows a bond was posted for Cuellar on January 13, 1998, and he was not released to the federal authorities until January 23, 1998. There was testimony that the Immigration and Naturalization Service (“I.N.S.”) placed a detainer on Cuellar and sent it to the Refugio County Sheriff, and that Cuellar was held in custody in the interim for the I.N.S. There was also testimony that Rolando Reyes was aware of the I.N.S. de-tainer prior to Cuellar being handed over to the I.N.S. on January 23.

Article 17.08 of the code of criminal procedure outlines the requirements for a bail bond. TexCode Crim. Proc. Ann. art. 17.08 (Vernon Supp.2000). Significantly, it does not require release of the principal. Release of the principal is discussed in article 17.29, which directs that the principal is to be set at liberty when the accused has given the required bond. TexCode Grim. PROC. Ann. art. 17.29(a) (Vernon Supp.2000). From a reading of articles 17.08 and 17.29, it appears that validity of the bond does not depend upon release of the principal; rather, validity of the bond must be established in order to secure release of the principal.

Bail bonds are contracts between the surety and the State. Morin v. State, 770 S.W.2d 599, 599 (Tex.App.—Houston [14th Dist.] 1989), pet. dism’d per curiam, 800 S.W.2d 552 (Tex.Crim.App.1990); Keith v. State, 760 S.W.2d 746, 747 (Tex.App.—Fort Worth 1988), aff'd, 802 S.W.2d 690 (Tex.Crim.App.1990). “A ‘bail bond’ is a written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation.... ” TexCode Crim. Proc. Ann. art. 17.02 (Vernon 1977) (emphasis added). The contract consists of a promise by the surety that the principal will appear before the court in exchange for a promise by the State that it will release the principal. Appearance of the principal before the court and release of the principal by the State relate to performance of the bond, rather than to its validity. The legislature has provided sureties with a remedy for instances in which the principal cannot be released because he is being held in the custody of another jurisdiction. Article 17.16 provides that “A surety may before forfeiture relieve himself of his undertaking by ... delivering to the sheriff of the county where the prosecution is pending an affidavit stating that the accused is incarcerated in federal custody, in the custody of any state, or in any county of this state.” TexCode Crim. PROC. Ann. art. 17.16(a)(2) (Vernon Supp.2000). Appellants, in this case, elected not to pursue relief under article 17.16. Nonetheless, the bond complied with article 17.08 and was a valid and binding undertaking at law. Appellants’ first issue is overruled.

In their second issue, appellants claim the trial court erred in failing to exonerate them from liability because Cu-ellar’s failure to appear was an uncontrollable circumstance that arose from no fault on his part. Article 22.13 provides exoneration for a surety if some “uncontrollable circumstance” that arose through no fault of the principal prevented his appearance at court. TexCode Crim. PRoc. Ann. art. 23.13(3) (Vernon 1989).

The court of criminal appeals has held that a principal’s incarceration in another state or country is an uncontrollable situation for purposes of article 23.13(3). Hill v. State, 955 S.W.2d 96, 99-100 (Tex.Crim.App.1997). As the court explained, “[a] principal incarcerated in another jurisdiction could not appear for trial pursuant to the bond if he wanted to.” Id. at 99. Similarly, we conclude a principal’s deportation from the United States is an uncontrollable situation, as he may not legally reenter the country to appear before a court.

Appellants must still, however, show the circumstances arose through no fault of the principal. TexCode Crim. Proc. Ann. art. 23.13(3) (Vernon 1989). The Hill court examined the “fault” requirement in the context of the principal being incarcerated in another jurisdiction. See Hill, 955 S.W.2d at 99-101. The court commented:

In assessing “fault” the principal’s status in the other jurisdiction becomes important-is the principal simply awaiting trial there, or has the principal been convicted and is now serving his sentence? If a principal has been convicted of the crime in the other jurisdiction, the reasoning of Williams[v. State, 130 Tex.Crim. 124, 92 S.W.2d 1036 (1936)], supra, makes sensesince the principal’s illegal actions led to his incarceration and it is the incarceration that prevents his appearance, it cannot be said that his failure to appear “arose through no fault on his part.” He certainly bears some modicum of fault in his failure to appear by virtue of the fact that his illegal actions led directly to his incarceration, thereby preventing his appearance.

Id. (emphasis in original). The court further explained, in the context of a summary judgment, that “[i]n order to raise evidence that his failure to appear arose through no fault on his part in the context of an incarceration in a foreign country, the non-movant must offer some proof that he has not been convicted of the alleged actions that serve as the basis for the incarceration.” Id.

In this case, the uncontrollable circumstance is deportation rather than incarceration in another jurisdiction; nonetheless, we are guided by the court’s analysis. We must determine whether Cuellar’s deportation, which prevented him from appearing before the court, arose from no fault on his part. Here, there is no evidence of why the I.N.S. took custody of Cuellar and why he was subsequently deported. Appellants have failed to make an adequate showing of no fault under article 22.13(3). Because appellants did not establish that Cuellar’s failure to appear was due to an uncontrollable circumstance that arose from no fault on his part, the trial court did not err in refusing to exonerate appellants from liability under the bond. Appellants’ second issue is overruled.

The judgment nisi and the subsequent judgment declaring forfeiture are AFFIRMED.

      . The literal meaning of "judgment nisi” is "judgment unless.” Bob Smith Bail Bonds, Sur. v. State, 963 S.W.2d 555, 556 (Tex.App.—Fort Worth 1998, no pet.). It denotes a judgment that will stand unless the "party affected by it shall appear and show cause against it....” See Black’s Law Dictionary 944 (5th ed.1979).

      . There was some dispute at the hearing on the judgment nisi as to when the appeal bond was filed. The appeal bond itself is stamped filed January 23, 1998, but indicates it was filed and signed by the judge on January 13, 1998. The judgment nisi recites that appellants entered into the bond on January 13, 1998. In their briefs, both parties agree the bond was posted on January 13, 1998. Accordingly, we treat the appeal bond as entered on January 13, 1998. See Tex.R.App. P. 38.1(0.

      . Rolando Reyes testified Cuellar was not an illegal alien and that he had a green card.

      . Under article 22.05 of the code of criminal procedure, the principal is not entitled to notice "unless he has furnished his address on the bond, in which event notice to the defendant [principal] shall be deposited in the United States mail directed to the defendant at the address shown on the bond.” Tex.Code Crim. Proc Ann. art. 22.05 (Vernon 1989); see Rodriguez v. State, 990 S.W.2d 438, 441 (Tex.App.—El Paso 1999, no pet.) (noting "[f]or-mal service of citation on the principal is clearly not contemplated by article 22.05”).

      . A document entitled, "Immigration Detain-er-Notice of Action” appears in the reporter's record. It is addressed to the Refugio County’s Sheriff and advises that an investigation has been initiated to determine whether Cuel-lar is subject to removal from the United States. It requests that the Sheriff's office notify the I.N.S. of Cuellar’s time of release at least thirty days prior to the release. The document is dated November 16, 1997.

      . There was conflicting testimony as to whether Reyes was aware that the I.N.S. had a detainer out for Cuellar when he posted bond or before Cuellar was released to the federal authorities. According to Rolando Reyes, Cuellar never informed him of any problems with the I.N.S, and if he had, Reyes probably would have never bailed him out. Reyes testified, "after a few days, two or three days, this is when we find out about it with I.N.S. The man stayed there ten days or longer before they picked him up. But I wasn’t aware until about two or three days later. If I was aware before that I would have never released him, I would have never bailed him out.” However, Reyes also stated that he called the jailhouse one time to inquire why Cuellar was still being held. He was informed that Cuellar was being held for the I.N.S. Robert L. Vega, an assistant jail administrator for Refugio County Sheriff’s Department, testified he advised Mr. and Mrs. Reyes that Cuellar had an I.N.S. detainer prior to their making bond, and that he explained that Cuellar would not be released by the bond.