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Court of Appeals of Texas, Eleventh District, EastlandSep 4, 2003
No. 11-02-00364-CR (Tex. App. Sep. 4, 2003)

No. 11-02-00364-CR

September 4, 2003. DO NOT PUBLISH. See TEX.R.APP.P. 47.2(b).

Appeal from Erath County.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.


The jury convicted Toby Wade Beyer of the offense of bail jumping and failure to appear. See TEX. PENAL CODE ANN. § 38.10 (Vernon 2003). The jury assessed appellant's punishment at confinement for seven years. We affirm. In his sole issue, appellant argues that he provided "legally and factually sufficient" evidence in support of his defense of "reasonable excuse." The offense of bail jumping and failure to appear is committed when a "person lawfully released from custody, with or without bail, on condition that he subsequently appear . . . intentionally or knowingly fails to appear in accordance with the terms of his release." Section 38.10(a). However, Section 38.10(c) provides that it is a defense to prosecution that the person had a "reasonable excuse" for his failure to appear. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and also could have found against appellant on the defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Cr.App. 1991); see TEX. PENAL CODE ANN. § 2.03 (Vernon 2003); Jackson v. Virginia, 443 U.S. 307 (1979); Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Cr.App. 2003). With respect to a defense, the defendant bears the burden of production, requiring the production of some evidence that supports the particular defense. The State then bears the burden of persuasion, rather than production, to disprove that defense. This standard requires only that the State prove its case beyond a reasonable doubt. Zuliani v. State, supra at 594; Saxton v. State, supra at 913-14. In order to address a challenge to the factual sufficiency of the evidence with respect to the rejection of a defense, we must review all of the evidence in a neutral light and determine whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, supra at 595. The record reflects that appellant had been indicted on April 17, 2002, for a felony offense (possession of one gram or more but less than four grams of methamphetamine) and that he failed to appear on June 24, 2002, for the original setting of the pretrial hearing in that case. Appellant had been notified of the pretrial setting by the trial court and by the district attorney's office. During appellant's arraignment on June 10, 2002, the trial court stated in open court: "I will set both of these cases for pretrial on June the 24th, 2002, at 9:00 a.m." An employee of the district attorney's office testified that, on April 18, 2002, she sent appellant a letter notifying him of the June 24 pretrial setting. The letter was sent to appellant in care of the Erath County Jail, where appellant resided at that time and until he bonded out of jail on June 14, 2002. The letter stated: "All Defendants and Attorneys must be present at 9:00 A.M. in the District Courtroom . . . at the times and dates listed below. . . . PRETRIAL is set for June 24, 2002." (Emphasis in original) A similar notice was sent to each of appellant's attorneys. Appellant's bondsman, appellant's wife, and the attorney who represented appellant at the time of the pretrial setting testified on appellant's behalf. Lindol Ross Howell testified that he bonded appellant out of jail on June 14 and that he did not notify appellant of the pretrial setting because he was not aware of any setting. On the afternoon of June 24, Howell contacted appellant by phone using a number that appellant had given Howell. Howell informed appellant that he had missed a court appearance and was in trouble. Howell instructed appellant to meet him the next morning in order to surrender to the court. Appellant complied. Attorney Shay Isham testified that he represented appellant at the time of appellant's arraignment and pretrial. Isham noted the June 24 pretrial setting and appeared as required. Although he routinely sent letters to his clients notifying them of upcoming court appearances, including appellant in other cases, he did not send such a letter to appellant or otherwise notify him of the June 24 setting. Isham explained that he did not send such notices when his clients were incarcerated because he expected the jailers to bring them to the courthouse. Isham was unaware until June 20 or 21 that appellant had bonded out of jail. Isham testified that he attempted to contact appellant on or before June 24 but that he could not reach appellant. Later that afternoon, after Howell had contacted appellant, appellant called Isham. Isham instructed appellant to be at the courthouse the next morning. Appellant complied. Appellant's wife, Amanda Michelle Beyer, testified that she and appellant "both were under the impression and had it in [their] minds" that appellant would have a little over a month to get readjusted and get a job and that he had until the following month before the pretrial. According to appellant's wife, the papers that were in appellant's possession when he was released on bond were in the trunk of her car where they had been since the date of his release. Applying the standards of review discussed above, we hold that the evidence is both legally and factually sufficient. A rational jury could have found the elements of the offense beyond a reasonable doubt and could have rejected appellant's "reasonable excuse" defense beyond a reasonable doubt. Furthermore, the evidence supporting guilt is neither so weak nor so outweighed by the great weight and preponderance of the evidence as to be manifestly unjust. Appellant's sole issue is overruled. The judgment of the trial court is affirmed.

Appellant had two pending indictments at the time. The other indictment was for the manufacture or delivery of more than 4 grams but less than 200 grams of methamphetamine.