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Click here for the full text of this decision FACTS:On Oct. 17, 2003, Felix Michael Kubosh, a licensed bail bondsman, executed two bonds in the amount of $50,000 each as principal surety for Chaderick Duane Moore. Sonja Salinas was a co-surety on one of the bonds. Moore failed to appear for his first court date on Nov. 14, 2003, and the trial court entered two judgments of bond forfeiture (judgments nisi) on Nov. 19, 2003. The judgments nisi ordered that the state recover from Moore, as principal on the bonds, and Kubosh and Salinas, as sureties on the bonds, in the amount of $50,000 per bond. The judgments nisi were to become final unless good cause was shown why Moore did not appear. Kubosh filed a general denial and asked for equitable remittitur of one-half ($25,000) of each bond. At the first scire facias hearing on Oct. 19, 2004, Kubosh requested a continuance to allow him more time to locate Moore. The court granted a 90-day continuance, and the matter was set for a second scire facias hearing on Jan. 18, 2005. At the hearing on Jan. 18, 2005, the court reporter was not instructed to make a record of the proceedings until some undetermined, but apparently brief, period of time after the hearing had already begun. Thus, the reporter’s record begins in medias res, with counsel for Kubosh objecting to the state’s request for default judgments. Kubosh asked the trial court not to grant a dismissal for Salinas and to grant a continuance to allow time for Salinas to be subpoenaed. The state responded that it was unable to obtain service of process on Salinas and explained that that was the reason they were “asking for a default judgment just against Mr. Kubosh.” Kubosh responded that the state had not made a prima facie case for default judgment and asked that the court remit half of the bond. The trial court denied Kubosh’s motion for continuance and motion for remittitur, and it overruled his objection to the default judgment. The trial court then signed the final judgments of forfeiture, dismissing the state’s case against Salinas and declaring the bonds forfeited against Kubosh. The written judgments recite that the trial court rendered final judgment against Kubosh on the forfeitures “after considering the pleadings and evidence herein, including the bail bond and the Judgment of Forfeiture [presumably the judgment nisi] on file in this cause[.]“ On appeal, Kubosh filed a motion for “Correction of Inaccuracies in the Reporter’s Record” with the 1st Court of Appeals, in an attempt to recreate the missing portion of the record. The 1st Court remanded the case to the trial court to resolve the dispute, and a hearing to correct the record was set for Nov. 9, 2005. At the hearing, Kubosh took the stand. He testified that in his opinion, the only thing missing from the record was that the prosecutor approached the bench and asked for the default judgments before the case was called. The prosecutor had a different view. He testified: “The Judge called the case for trial. He asked if the parties were ready. State said they were. Mr. Kubosh said he was. I, at that time, then moved the Court to take judicial notice of the bond and judgment Nisi and approached the Court with the two final judgments.” At the conclusion of the hearing, the trial judge clarified that while he had not meant to grant a default judgment against Kubosh in the case, he had indeed rendered a final judgment of forfeiture in the case (just as his earlier written judgment had recited), after considering “the paperwork” presumably, the judgments nisi and the bond itself, which were contained within the clerk’s record as of the second scire facias hearing on Jan. 18, 2005. On appeal to the 1st Court of Appeals, Kubosh argued that the trial court erred in entering a judgment for the state, because the evidence was insufficient and because the state moved for a default judgment against Kubosh even though he filed an answer and appeared. In its unpublished memorandum opinion, regarding the first point of error, the 1st Court found that the trial court had taken judicial notice of the bonds and judgments nisi and therefore had sufficient evidence to grant the final judgment of forfeiture. The court found the second point of error to have no merit, concluding that the prosecutor simply misspoke when he requested a default judgment against Kubosh. HOLDING:Affirmed. Under Texas Rule of Evidence 201, the CCA stated, a trial court has discretion to take judicial notice of an adjudicative fact without being asked and may do so at any stage of the proceeding. The party against whom an adjudicative fact is judicially noticed is entitled, upon timely request, to an opportunity to be heard upon the question of the propriety of the judicial notice. In the instant case, the CCA found that Kubosh failed to request an opportunity to be heard, even after it became apparent to him that the trial court had taken judicial notice of both the judgments nisi and the bond itself. Kubosh’s assertions in his motion for a new trial, the court stated, demonstrated his awareness that, because the judgments nisi and bonds were never formally introduced into evidence by the state, the only way the trial court could have rendered the final judgments against him was by taking judicial notice of both the judgments nisi and the bonds. But Kubosh, the CCA stated, failed at this juncture to request a hearing on the propriety of that apparent judicial notice. It is true, the CCA stated, that the trial court failed to announce on the record that it was taking judicial notice. It only inferentially indicated it was doing so in its written judgments. Therefore, by the terms of Rule 201(e), Kubosh would have been justified in making his request for an opportunity to be heard on the propriety of judicial notice for the first time in his motion for new trial. Yet he did not do so, the CCA stated. He complained in his motion for new trial that the state failed to request such judicial notice, but Rule 201(c) permits the trial court to take judicial notice sua sponte, the CCA noted. Kubosh further complained, the CCA stated, that the CCA has never expressly authorized judicial notice of the bonds. But the CCA declared that Kubosh failed to make any argument why judicial notice of the bonds would be inappropriate. Thus, the CCA found that Kubosh failed to make a timely request for an opportunity to challenge the propriety of the judicial notice or the tenor of the particular bonds that were judicially noticed. Kubosh procedurally defaulted any complaint he might have had that these particular bonds were not properly the subject of judicial notice under the terms of Rule 201. For this reason, the CCA agreed with the 1st Court’s assessment that the trial court did not err to judicially notice them. OPINION:Price, J., delivered the opinion for a unanimous court.

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