By Benjamin I. Kaminar
Assistant County & District Attorney in Lamar County
“Counsel, I have a jury waiting. Where is your client?” Words that no defense attorney wants to hear—and words that indicate a great deal of time and preparation on the prosecution’s part are about to go to waste. Sometimes, there’s a legitimate reason for the de- fendant’s failure to appear, such as a car collision en route to court or a child who had to go to the emergency room …
Wait—didn’t we run this article four issues ago? Not quite. It sounds familiar because in a previous article, we covered how to forfeit a fugi- tive’s bond a few issues back, but now it’s time to follow up with how to prosecute the new offense.
Investigation and charging
Bail jumping is a relatively straightforward of- fense to investigate and charge. The elements are simply that the defendant was lawfully released from custody on condition that he appear in court, and he intentionally or knowingly failed to appear. As with our previous discussion about forfeitures, we start with the bond itself. A person hasn’t committed an offense if he was never re- leased from custody on bond, whether through an erroneous release or some other situation. This may be especially important if your jurisdiction sets cases for a docket where the defendant has not yet been arrested. Once you have verified that the person was released on bond and is not in court, the court should forfeit the bond (again, as we discussed during the forfeiture article). Often, the bailiff or officer taking the forfeiture will complete a certificate or affidavit for the court’s file, which will be useful later on. If they don’t, check the court’s file for any other documentation, whether a docket entry, a judgment nisi, or something else showing that the court put in its records that the defendant failed to appear.
Once we’ve established that the defendant was on bond and failed to appear, the next investigative step is to confirm that the defendant had notice of the setting. How defendants are given notice will vary by jurisdiction. In some counties, the defendant may sign a reset sheet or pass slip containing the date and time of the new setting. In others, he will receive a notice mailed from the clerk’s office with each setting. If this is the case, confirm that notice was mailed to the address listed on the bond, not an old address. Some- times, defendants who have had cases in a county before will have historical address information that does not get updated with the new arrest; other times, the defendant will have had a change of address after arrest and will have updated that information with the clerk’s office. Prosecutors should make sure notice went to the address the defendant gave.
Next, an inquiry to the defendant’s bonds- man may be in order. Some bondsmen actively track their defendants’ court settings and stay in contact with them. These bondsmen can be in- valuable in confirming whether they notified the defendant of court dates as well as alerting us to reasons the defendant may not have appeared, such as hospitalizations. Other bondsmen may not be quite as thorough in monitoring their defendants and are less helpful.
Finally, once a defendant is re-arrested, checking his jail calls may be worthwhile, especially if he is contacting bondsmen to post bail again. Bail bondsmen will often want to know why the defendant didn’t show for court before writing a new bond, and the defendant might just offer an excuse—which can provide useful impeachment material for trial or alert prosecutors to a justification that changes our charging decision.
After you’ve run down all the information regarding the defendant’s bond, failure to appear, and notice, it’s time to draft the charging instrument. The degree of offense for bail jumping varies based on the degree of offense for which the defendant was required to appear. Bail jumping is generally a Class A misdemeanor; however, if the underlying offense was a Class C misdemeanor, the bail jumping offense is also a Class C.1 If the underlying offense was a felony, the bail jumping offense is a third-degree felony. It is crit- ical that an indictment specify the defendant was required to appear for a felony; if it does not, then the indictment defaults to the offense being a misdemeanor.2 The felony/misdemeanor classification is based on the offense as filed in court, not as listed on the bond.3 This means, for example, that if the defendant is arrested for the felony of DWI–3rd and posts bond for a DWI–3rd, but the charge is later filed as a misdemeanor DWI– 2nd, the bail jumping charge will be a misdemeanor. On the other hand, if the defendant is arrested for a misdemeanor family violence charge and posts bond for that misdemeanor but is subsequently indicted for felony family violence because of a prior conviction, any bail jumping charge will be a felony.
Finally, bail jumping is not a continuing offense, so the statute of limitations begins to run the day the defendant fails to appear.4 Bail jumping has the default felony limitation of three years, but limitations may be tolled by the defendant’s absence from the state. Prosecutors rely- ing on the defendant’s absence from the state to avoid a limitations problem should ensure that the indictment alleges tolling.
While a bail jumping trial may be simple on its face, there are still some key issues to watch for and steps we can take while presenting evidence that will strengthen a case. Voir dire affords the opportunity to discuss potential defenses, such as reasonable excuses for failing to appear. Hypotheticals regarding various reasons and differing reapprehension scenarios can be helpful in flushing out potential jurors’ views on excuses.
The case-in-chief will often be relatively straightforward. Step one, as always, is proving the defendant’s identity. If the bondsman is avail- able, he can often identify the defendant as the person for whom he posted the bond. The bonds- man can also discuss his office procedures for periodic check-ins, how he monitors defendants, and what he does to get defendants to court. A re- ally good one will also discuss efforts to recover the defendant after he failed to appear.
Next, a deputy clerk can explain for the jury how defendants are notified of court appearances and the purpose of the various documents that the State is offering, such as notice letters, reset sheets, the bond, etc. Having someone to explain the meaning and provide context is far preferable to letting the jury try to sort through a pile of documents. A clerk can also testify about how her office updates addresses to ensure that any notices go to the most recent known address. The theme of the clerk’s testimony should be that of professional and routine administration.
Third, call the bailiff from court the day of the failure to appear. While prosecutors could simply offer a certified copy of a certificate of call (assuming one was completed), live testimony from someone who was in the courtroom provides context. Explaining how long the court waits for the defendant to appear before forfeiting the bond, where the defendant’s name is called, and so forth help to show the steps taken and leeway given to make sure it was not just a case of someone running late or getting lost in the courthouse.
If officers actively attempted to locate and re-arrest the defendant, their testimony about ef- forts to find him can be invaluable in showing the defendant’s intent to avoid being brought to court. For example, if an officer tried to find the defendant at his home, elicit testimony about how many times the officer went to the house and when he did so. You can even top it off with a photograph of the defendant’s mailbox or house numbers just to show that the officer was looking at the same place listed on the bond.
If a defendant has previous criminal history in your county, he likely has had bonds there be- fore. This may be a chance to go through his previous bonds and appearances for the limited purpose of showing his knowledge of how appearances work. The best way to go about this will probably be to use his previous bondsmen— that way you can discuss the defendant’s familiarity with the requirements of being on bond while not introducing evidence of prior offenses.
Finally, don’t forget to introduce certified copies of all relevant documents (or have a custodian authenticate them). We’ve discussed the bond, any type of notice from the clerk’s office, and a certificate of call or bailiff’s certificate. Some others include the charging instrument, which will show whether the offense was a felony or misdemeanor, any judgment nisi because it is additional documentation of the defendant’s absence, and any defensive pleadings (or a default judgment) from a companion civil case. Some judges may be unwilling to admit the judgment nisi because they think that can be construed as the court commenting on the evidence. If a judge raises that concern, be like Elsa and let it go.5 There should be plenty of other evidence, and if the judge has voiced that concern, any halfway competent defense attorney will seize on it as an objection. The case should already be solid enough that you don’t have to risk an unforced error.
Bail jumping has one special defense, that of a reasonable excuse for the defendant’s failure to appear. What is reasonable is, as always, a question for the jury. However, regardless of what the excuse is, it must cover the entire time that the defendant was gone, from his failure to appear to his re-arrest or reappearance in court.6 Even if an excuse is reasonable for the day of the failure to appear, it may not explain the rest of his absence. For example, a stomach virus the morning of court may be reasonable, but if it takes six months to re-apprehend the defendant, it probably won’t qualify as a defense.
If the defendant produces some evidence of an excuse, be prepared to explore just when he came up with that excuse. If you forfeited his bond and served him with the forfeiture, check to see whether the defendant ever filed an answer. At least one court has held that the defendant’s failure to answer a bond forfeiture suit is relevant evidence to rebut a defense.7 This is also an opportunity to use the defendant’s jail calls where he discussed some other excuse (or had none at all). You can also use the re-arresting officer to rebut a reasonable excuse. If the defendant was actively evading law enforcement or was caught during some other activity, it will undermine the reasonableness of the excuse, its duration, or both.
If some evidence of an excuse has been produced, the defendant will be able to request a defensive jury instruction, and the court refusing it will almost guarantee reversal (and not requesting it at all is begging for an ineffective assistance claim). If a defendant requests this instruction, prosecutors should request a further instruction that a reasonable excuse must cover the entire period of the defendant’s absence. While it’s a non-statutory instruction, at least one appellate court has applied a three-part test for such instructions and found it to be proper.8
As a rule, you probably won’t be trying a bail jumping case with other offenses. Due to the separation in time from the underlying offense, it probably won’t qualify for consolidation as part of the same criminal episode.
On the bright side, because it can’t be tried together with the underlying offense, any punishment for bail jumping will be eligible for stacking. Although there’s no requirement of notice that the State intends to seek a cumulated sentence, it doesn’t hurt to file a notice of intent—it ensures that the defendant and his attorney know you are planning to stack and will insulate the record from an ineffective assistance claim. The claim that the defendant would have pleaded guilty if only he had known the punishment would be stacked is almost always laughably false, but why expend effort on getting affidavits in a couple of years when we can foreclose that claim with a few minutes of effort before trial?
The vast majority of bail jumping cases will not see a jury, whether they are charge-bargained away or packaged with the underlying offense. However, when prosecutors are faced with a bail jumping trial, the same preparation and effort we would bring to any other case should be brought to bear. From careful investigation and charging, to thorough presentation before the jury, we can put ourselves in the best position to bring justice to those who flee it.
 For certain Class C Transportation Code offenses,there is a more specific failure to appear statute that applies: Trans. Code §543.009.
 “Except as provided in Subsections (e) and (f), an offense under this section is a Class A misdemeanor.” Tex. Penal Code §38.10(d).
 See Chacon v. State, 2012 Tex. App. LEXIS 9677 (Tex. App.—Corpus Christi, no pet.).
 State v. Ojiaku, 424 S.W.3d 633 (Tex. App.—Dallas 2013, pet ref’d).
 Frozen, Disney, 2013 (defiant/snarky musical number optional).
 Kombudo v. State, 148 S.W.3d 547 (Tex.App.—Houston [14th Dist] 2004, rev’d on other grounds), 171 S.W.3d 888 (Tex. Crim. App. 2005).
 Atchley v. State, 2016 Tex. App. LEXIS 12540 (Tex.App.—Texarkana 2016, pet ref’d).
 See Perkinson v. State, 2013 Tex. App. LEXIS 9948 (Tex. App.—Corpus Christi 2013, no pet.).